Service of summons is sufficient if it is addressed to the defendant at the place where the defendant or his family ordinarily reside or carries on business or person works for gain and is offered to him by the postal employee, who testifies that the defendant refused to accept it. A decree can be passed against a deceased defendant even in the absence of his legal representatives, if he had not contested the suit and had not filed a written statement.

R. BALIA, J.

( 1 ) HEARD learned counsel for the parties.

( 2 ) THIS revision is directed against the order dt. 8-7-91 passed by District Judge, Udaipur rejecting the petitioners application under Order 9, Rule 13, C. P. C. for setting aside ex parte decree against the petitioner.

( 3 ) IN suit for pre-emption against the petitioner and his vendor Kurilal, in the first instance, summons were issued on 26-4-82 for 6-7-92. Summonses were not served on the petitioner as he was out of station when the process server went to his house. Thereafter the Court directed to issue summons afresh and in addition to that the Court also directed that summons be also sent through registered post in terms of O. 5, Rule 19a, C. P. C. The next date fixed was 6-9-82. The registry containing summons of Badamilal petitioner was returned with an endorsement of refusal and this was held to be sufficient in terms of Order 5, Rule 19a (2 ). Since the petitioner had not appeared on that date, and service on him has been held to be sufficient the Court ordered to proceed ex parte against him. The summonses were ordered to be issued against Kurilal co-defendant who was served before 13-5-83. Kurilal also did not appear in the suit, and he too was ordered to be proceeded ex parte. After recording of the evidence of plaintiff and hearing an ex parte decree was passed against the defendant-petitioner on. 13-7-84.

( 4 ) IN the aforesaid circumstances the petitioner moved an application under Order 9, Rule 13, C. P. C: for setting aside the ex parte decree. He alleged that the plaintiff has not complied with the order dt. 6-7-82. He also alleged that registry containing summons was not offered to him and he did not refuse to accept it. He also alleged that the registry was addressed to Dhuley Kangan Store with which the defendant is not related. Another plea was taken that Kurilal died on 12-10-84 before passing of the decree, no decree, according to defendant-petitioner, could have been passed without bringing on record the legal representatives of deceased Kurilal. A reply of the application has been also filed denying the allegation of applicant. So far as the claim of the petitioner for setting aside the decree on the ground that death of Kurilal is concerned, it was pointed out that Kurilal died after arguments were heard in the case and merely because decree was passed thereafter the death of defendant during intervening period does not affect the validity of the decree. Defendant also examined the postman who stated on oath that he knows the defendant Badamilal personally, he offered the registry to defendant Badamilal and on his refusal it was returned with endorsement of refusal. The trial Court relying on the statement of postman held that summonses were duly offered to the defendant and he has refused to accept the same therefore declaration made under Order 5, Rule 19a (2) cannot be said to be incorrect and it cannot be said to be insufficient service in the present case. There is no dispute that the registered article was addressed to Badamilal and Dhuley Kangan Store was also mentioned as trade name but the place at which article was addressed was Dharmshala, Rishabh Dev Ji and the plaintiff place of business is Dharmshala, Rishavdev ji. On these findings the trial Court rejected the ,application filed by the petitioner.

( 5 ) LEARNED counsel for the petitioner has urged that notices under Rule 19a of Order 5 are issued in addition to issue of summons in ordinary manner and such service cannot be treated as substituted service and he further says that no presumption of service can be drawn from refusal of postal article.

( 6 ) PERUSAL of R. 19a (1) leads one to conclude that there is no merit in the contention made on behalf of the petitioner. The requirement of rule is that it should be addressed to the defendant at the place where the defendant or his family ordinarily reside or carries on business or person works for gain. As has