JAIN, J.—This is a miscellaneous appeal under O. 43 r. 1(d), Code of Civil Procedure and is directed against the order dated 14-9-74 of the Additional District Judge No. 2, Jodhpur, by which he refused to set aside the exparte decree passed against the appellant.

2. Briefly stated the facts of the case are that the respondent firm, M/s. Lohiya Murlidhar Meghraj sued M/s. Sitaram Ramavtar for recovery of Rs. 17,000/. for some alleged breach of contract. The appellant firm M/s Sitaram Ramavtar is a partnership firm and has been working as commission agents in Hyderabad (Andhra Pradesh). The respondents suit had been registered on 14-10-70 by the District Judge, Jodhpur but it was transferred for trial to the court of Additional District Judge No. 2, Jodhpur. On 19-10-70 summons were ordered to be issued for service in ordinary course on the defendant firm. In addition to that process, summons were also ordered to be sent by registered post. The notices which were sent in the ordinary course being in Hindi were sent back by the court of District Judge, Hyderabad with the remarks that the notices be sent in English for service. The notice that was sent under registered cover came back with the remark refused. This endorsement was purported to have been made on 30-11-70. The date fixed in the case was 26-11-70. The learned trial judge did not think service by registered notice as sufficient. On 11-12-70 without issuing any further summons in ordinary course, he ordered that notice be sent under registered cover and the case was fixed on 14-1-71. On that date the notice sent by registered cover was received back with the remark refused. The learned trial judge deemed this to be sufficient service and proceeded with the suit exparte against the defendant firm. After recording the evidence exparte, he decreed the plaintiffs suit on 23-10-72.

3. The plaintiff-firm took out the execution. It also got the execution transferred to a court in Hyderabad. According to the defendant-firm it came to know of the decree having been passed against it in Jodhpur on 6-2-73. It filed an application under O. 9 R 13 C. P. C. on 28-2-73. It was alleged in the application that there was no proper notice to the defendant-firm and the summons were never tendered or delivered to any of the partners of the firm or anyone otherwise competent to receive summons on its behalf. It was also contended that the endorsement of refusal on the registered letter was incorrect. This application was opposed by the plaintiff-firm. The learned trial judge enquired into the matter and examined Sitaram on behalf of the defendant and Shankerlal, Kesrimal, and Ramchandra on behalf of the plaintiff. By his order dated 14-9 74 the learned trial judge dismissed the application of the defendant-firm. It is this order that has been challenged by the defendant-firm.

4. Mr. Mathur learned counsel appearing on behalf of the defendant-firm has strenuously urged that the trial judge was in error in holding service by registered post sufficient in the circumstances of the case. His submission is that under O. 5 R. 10 C.P C. service of summons must have been made by delivering or tendering a copy thereof to the defendant-firm. The proviso added in Rajasthan, only empowers the court to send the summons by registered post in addition to the mode of service laid down in this rule. It has been pointed out that in the first instance summons were sent for service in the ordinary course to the court in Hyderabad but no attempt was made on the basis of those summons inasmuch as they were returned by the Hyderabad Court with the remark that the summons should have been sent in English. According to Mr. Mathur no attempt was made by the trial Judge to serve the summons as contemplated by O. 5 r. 10 C.P C. and as such there was no occasion for that court to have sent the summons by registered post. Mr. Mehta, on the other hand, placed reliance on O. 5 r. 20A. He argued that when the summons sent for s

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