The main legal point established in the judgment is the adequacy of service of summons and the rejection of the application under Order 9, Rule 13 Civil Procedure Code.

1. - Being aggrieved by the order dated 28.11.2006 passed by learned District Judge, Bikaner rejecting an application preferred by the appellant defendant under Order 9, Rule 13 Code of Civil Procedure, this misc. appeal is preferred.

2. The application was preferred by the appellant defendant with the averment that the suit for specific performance of an agreement to sale dated 28.8.1991 was decreed exparte on 18.3.1996, though as a matter of fact no summon issued by the trial court was ever served upon her. As per the appellant the service of summon upon her was erroneously treated satisfied on acceptance of summon by defendant No.3 on her behalf. It is urged that the defendant No.3 was neither authorised nor was having any right to accept notice on behalf of the appellant defendant.

3. Learned trial court while rejecting the application considered record of the original suit and found that the defendant No.3 who is son of the defendant appellant received notice on 31.5.1995. Learned trial court gave a specific finding that the defendant No.3 is an adult and was residing with the defendant No.3. Relevant portion of the order impugned reads as follows:-

"ewy nkok la0 231@2003 dh i=koyh ds voyksdu ls ;g Li"V gksrk gS fd fnukad 19-5-1995 dh rkjh[k ds xaxknsoh o txnh'k ds lEeu izfroknh txnh'k dks fnukad 18-5-1995 dks fn;s x;s ysfdu vknsf'kdk fnukad 19-5-1995 ds vuqlkj lEeu okfil ugha ykSVus ls iqu% rkehy tkjh djus dk vkns'k fn;k x;kA fnukad 31-5-1995 dh rkjh[k ds lHkh izfroknhx.k ds lEeu izfroknh txnh'k dks fn;s x;sA izfroknh txnh'k izfroknh xaxknsoh dk iq= gksus ls o o;Ld gksus ls o mlh ds lkFk jgus ls izfroknh txnh'k ij izfroknh xaxknsoh dh vksj ls djkbZ xbZ rkehy fof/k vuqlkj gSA"

"ekStwnk izdj.k esa izfroknh txnh'k Lo;a ij mldh ekrk izfroknh xaxknsoh ds lEeu dh rkehy djkbZ xbZ gS tks mlh ds lkFk jgrh gS o txnh'k Lo;a ml fnu O;Ld FkkA"

4. Learned counsel for the appellant while assailing validity of the order rejecting the application under Order 9, Rule 13 Code of Civil Procedure urged that no adequate efforts were made by the process server to effect service upon the appellant defendant and as such gross violation of the provisions of Order 5 Rules 12 and 15 Civil Procedure Code is apparent. To substantiate the contention reliance is also placed upon Single Bench judgments of this Court in the cases of Hari Narayan and others v. Topkhana Desh Grah Nirman Samiti Ltd. (AIR 1997 Rajasthan 174) , and Ladu Ram v. Board of Revenue & Ors. [2001(3) WLN 80].

5. In the case of Hari Narayan (supra) the process server without showing any diligence to effect service upon the defendants personally affixed the summons on outer door of the residence. The process server also not made any report about identification of the house, whereas, in the instant matter it is not in dispute that address given in the notice was correct. It is also not in dispute that the defendant No.3 is son of the appellant defendant and is an adult person. A specific finding is also given by the trial court that the respondent No.1 and the respondent No.3 were residing jointly. In view of the set of facts above the law laid down by this Court in the case of Hari Narayan (supra) is having no application in the instant matter.

6. In the case of Ladu Ram (supra) the notice was served upon brother of the defendant without any proof of jointness of their families. The court, thus, in the case aforesaid held that in absence of proof of jointness a brother cannot be treated a member of family, even if residing in the same house. On facts, the law laid down in the case of Ladu Ram (supra) is also not having any application in present controversy. It is pertinent to note that the notice in the instant matter was served upon adult son of the defendant No.1 who himself was a defendant in the original proceedings. In the present matter the defendant No.2 is also son of the respondent No.1 and the notice on his behalf was also accepted by the defendant No.3. An effort is mad