Pulukuri Kottaya vs King-Emperor on 19 December, 1946
In Pulukuri Kottaya v. Emperor (AIR 1947 PC 67), the Privy Council interpreting Section 537 of the Cr. P. C. considered the question whether non-compliance of an express provision of law would amount to an irregularity. The Privy Council held that distinction between illegality and irregularity was based on the degree rather than kind; if there was substantial compliance of the procedure prescribed, the defect, if any, would be irregularity but if the non-compliance was of mandatory provision of law that would result in illegality. In the intant case, there is ample evidence to show that the process server had personally tendered the summons to the defendant and he had acquired knowledge about the plaintiff's claim and the date of hearing in the suit. Any failure of the process server to affix the copy of the summons on the door of the defendant's" house was a mere irregularity. No doubt the process server is required to comply with the procedure required
under Order V, Rule 17 and in case of failure to affix a copy on the outer-door of the house of the defendant, the service of summons may not be sufficient strictly according to law but if the defendant applies for setting aside of an ex parte decree, the defendant must prove that he had no knowledge and he had sufficient cause for his absence. If he fails to do so, the trial court, in view of the proviso to Order IX, Rule 13, would be justified in refusing to set aside the ex parte decree even though the process server had failed to affix a copy on the door of the defendant's house.