( 1 ) ). This us an appeal brought to this court under Order 43 Rule (d) of the Civil Procedure Code by the applicant of the Civil Misc. Application no. 58 of 1979 dismissed by the learned Civil Judge (S D.) Jamnagar who thereby refused to set aside the ex-parte decree passed against him by the learned Judge in the Special Civil Suit No. 74 of 1973 of his court.

( 2 ) THE ex-parte decree by recourse to Order 9 Rule 6 of the Civil Procedure Code was passed by the learned trial Judge on 24-10-74 after finding that the summons to this applicant the defendant no. 1 should be deemed to have been served under Order 5 Rule 21 (a) of the Code as the envelope by which the summons was dispatched was returned bearing the postal endorsement refused. The decree-holder filed the execution application by getting the decree transferred to the competent court at Chandigarh in Punjab and it is the say of the applicant the appellant herein that he came to know of the passing of the decree only when the execution process came to be intimated to him.

( 3 ) THE application was stoutly resisted by the decree holder who contended that the defendant no. 1 was rightly deemed to have been duly served with summons.

( 4 ) THE judgment of the learned Judge amply bears out the fact that the summons was sent at the address of this appellant-applicant. The address given by the appellant-applicant in the application and the address of his given in the suit at which the summons was sent by the court are identical. It is not the say of the appellant-applicant that postal communications addressed to him at this address do not reach him ordinarily at this address. All that he stated in the application and in the affidavit filed subsequently in support of the application was that the postman had not accosted him and therefore there was no occasion for him to refuse the acceptance of the letter sent by the court.

( 5 ) IT is to be noted that not only the summons was sent by registered post but as a matter of abundant caution a public notice was given in a celebrated paper none other than the Nav Bharat Times published from Delhi and said to be of wide circulation in Chandigarh as per the affidavit of the decree-holder filed-in-rejoinder. The factum of the suit having been instituted was also advertised in the paper.

( 6 ) MR. Ravani for the appellant-applicant invited my pointed attention to the judgment of the Supreme Court in the case of Puwada Venkateswara Rao v. Chidamana Venkata Ramana A. I. R. 1976 S C. 869 for the purpose of showing that the judgment of the Bombay High Court in the case of Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani A. I. R. 1968 Bombay 387 was accorded approval by the Supreme Court. All that the Supreme Court has stated is that where a notice sent by a registered post is returned with endorsement as refused it is not always necessary to produce the postman who tried to effect service. The above observation of the Supreme Court runs counter to the arguments advanced vigorously by Mr. Ravani before me that the postman must be examined. The Supreme Court however made a further observation which was pressed into service by Mr. Ravani. The Supreme Court observes the denial of service by a party may be found to be incorrect from its own admission or conduct and in this context the Judgment of the Bombay High Court in Meghji Kanjis case (Supra) was adverted to by the Supreme Court. It is therefore safe to conclude that afterall each case is to be decided in its own merits. In the facts before the Bombay High Court in Meghji Kanjis case (Supra) there was flat denial on the part of the party to whom was attributed the service. The learned Single Judge of the Bombay High Court held that examination of the postman in the light of the categorical denial by the defendant rebutted the presumption that would be available on a question of fact by recourse to sec. 114 of the Indian Evidence Act. What the Bombay High Court observed in tha