JUDGMENT - S.B. MHASE, J.:--- This Civil Revision Application is directed against the order passed by the Civil Judge, Junior Division, Chalisgaon on 1-9-1989 rejecting the Misc. Application No. 11 of 1987 filed by the present Petitioner for Condonation of delay and restoration of the Regular Civil Suit No. 59 of 1983.

2. The main crux of the matter is as to whether the service of summons in Regular Civil Suit No. 59 of 1983 was proper one.

3. The Regular Civil Suit No. 59 of 1983 was filed by the respondent for getting the possession of the suit land from the defendant. At present this Court is not supposed to go into the main controversy. However, the summons which was issued to the defendant in the present matter was served on the petitioner under Order V, Rule 17 of the Code of Civil Procedure and when it was found that on 13-7-1983 the defendant is absent, the suit proceeded ex parte and decree for possession has been passed.

4. Mr. P.R. Patil, learned Counsel appearing for the petitioner-defendant submitted that the service of summons in the present matter was not proper and therefore, the decree which is passed against him may be set aside and the suit may be restored to the file. He submitted that it is necessary for the learned Civil Judge, Junior Division after the summons is returned under Rule 17 of Order V to make a further inquiry under Rule 19 of the said order and thereafter to pass the order that summons has been duly served. However, the said procedure has not been followed. Mr. Mustafa, learned Counsel for the respondent submitted that summons has been duly served and that affidavit which is referred to in the certified copy can not be filed by the present petitioner as Part-III and IV of lower Court file have been destroyed, and therefore, non availability of the affidavit as required under Rule 19 cannot be considered in favour of the present petitioner so as to hold that the summons was not duly served.

5. The certified copy of the summons has been filed. From the endorsement it is revealed that the Bailiff has made a report on 8-7-1983 that "the defendant on inquiry was found and he refused to accept the summons. He was identified in the presence of the panch witnesses and thereafter the summons has been affixed on the door of the house of the petitioner-defendant". Below that there is signature of Bailiff so also the signature of one Ananda Jadhav. Thereafter there is following material. "Affidavit. Contents of report as true and then signature." Thereafter there is endorsement that "accepted on oath in presence and signed by the Nazir." There is an endorsement that the summons has been served by affixing the same on the door of the house of the defendant. All endorsements are dated 13th and 14th and there is signature of Registrar of the said Court dated 21-11-1989. It is further pointed out that on Exhibit 1 there is endorsement signed by the Civil Judge, Junior Division that "defendant though duly served with D/S vide Exh. 5 absent. Suit to proceed ex parte against the defendant." On the basis of this material whether it can be said that the summons has been duly served.

6. Order V, Rules 17 and 19 of the Code of Civil Procedure are to the following effect:

ORDER V, Rule 17.

"Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons, on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, a

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