The main legal point established is that the service of notice must comply with the law, and the application for setting aside an ex parte decree must be filed by a competent person within the prescribed time.

Vijay Kumar Shrivastava, J.

1. This is an appeal directed against the order dated 292002, passed by learned IIIrd Additional District Judge, Bilaspur in Miscellaneous Civil Case No. 19/ 2002, rejecting an application under Order XLI Rules 19 and 21 read with Section 151 of the Code of Civil Procedure.

2. Facts material for disposal of this appeal are that, the plaintiffs had filed a civil suit for possession of land bearing Khasra No. 748/2 area 0.76 acres situated at Village Tifra, District Bilaspur as also for recovery of arrears of rent of Rs. 2,175/- and damages against, the defendant M/s. Bharat Petroleum Corporation Limited, in the Court of Civil Judge Class-1, Bilaspur. The said suit was registered as Civil Suit No. 69-A/ 1998. The defendant remained ex parte in the suit. Learned IVth Civil Judge Class-I, Bilaspur, vide judgment and decree dated 1-12-1998, partly allowed the suit and passed decree against the defendant, for payment of arrears of rent. Being aggrieved by the said judgment and decree, the plaintiffs preferred Civil Appeal No. 7A/1999 in the Court of District Judge, Bilaspur. The defendant M/s. Bharat Petroleum Corporation Limited remained ex parte in the appeal. By ex parte judgment and decree dated 21-9-1999, the District Judge, Bilaspur allowed the appeal and for possession and mesne profit passed decree in favour of the plaintiffs.

3. The defendant M/s. Bharat Petroleum Corporation Limited filed an application under Order XLI Rules 19 and 21 read with Section 151 of the Code of Civil Procedure through its Power of Attorney Holder B. Krishna Murthy for setting aside the ex parte decree dated 21-9-1999 passed in Civil Appeal No. 7A/1999 on the ground that it was not duly served with the notice of appeal and hence could not appear and contest: the appeal before the Court. The defendant came to know about the decree on 12-4-2000 when in execution proceedings process server came to execute the possession warrant. Therefore, on 15-4-2000, the defendant filed an application for setting aside the ex parte decree along with a separate application under Section 5 of the Limitation Act for condonation of delay. The plaintiffs opposed both the applications not only on merit but also on their maintainability.

4. Learned Court below i.e. first appellate Court tried the issues involved in the matter, and after appreciating the evidence, held that, the defendant M/s. Bharat Petroleum Corporation Limited failed to explain the delay in filing the application, as also the Power of Attorney executed by it bears the signature of only one Director and one Secretary, whereas legally, it was required to be signed by two Directors, as such, the said two applications were not filed by a competent person and, therefore, by the impugned order dated 29-10-2002, dismissed those applications.

5. Heard learned Counsel for both the parties and perused the records of the Courts below.

6. Learned Court below i.e. first appellate Court, vide impugned order, has held that, no notice hearing of the appeal on 7-7-1999 was served on the defendant; Learned Counsel for the respondents /plaintiffs, in arguments, contended that, the said finding of the Court below i.e. first appellate Court is incorrect. On the other hand, learned Counsel for the appellant/defendant supported the said finding.

7. On 3-4-1999, Civil Appeal No. 7A/ 1999 was admitted for final hearing and the plaintiffs were directed to pay P. F. within 3 days for issuing notice to the defendant and the date for final hearing was fixed for 7-7-1999. On 7-7-1999, the District Judge was on leave, therefore, the Court Reader fixed the case for 16-7-1999. On 16-7-1999, learned District Judge held that, notice for 7-7-1999 was served on the defendant and, therefore, he proceeded ex parte against the defendant. The defendant has challenged the service of notice, and in its application, stated that, it was not duly served with the notice, therefore, it remained absent in the appeal. Learned