Honble YADAV, J.–The present misc. appeal arises out from an order dated 5.11.86 passed by learned District Judge, Churu, rejecting the application of the defendant-appellant dated 21.3.83 for setting aside ex parte decree dated 17.10.81.

(2). The aforesaid application for setting aside ex parte decree was moved by defendant-appellant on the ground inter alia that there was no service of summons on him before passing the ex parte decree and he has no knowledge about the pendency of the suit before he was served with the notice of execution of ex parte decree. It is also averred in the application for setting aside ex parte decree that suit was instituted on 31.1.81 and summons were ordered to be issued. Next date was fixed 24.2.81 on which date it was recorded by the court that the defendant is not present let service of summons and registered AD be awaited. On 11.3.81 summons by ordinary process were not received however it transpired that the summons alleged to have been sent on the incorrect address of the defendant-appellant by registered post was returned back with the endorsement on the envelop as `refused. The refusal accepted to be sufficient service by the court upon the defendant-appellant. It is also alleged that the father of the plaintiff-respondent namely Shri Nath Malji was an employee of Electricity Board who has manipulated the report of refusal on the envelop from the postman without letting defendant- appellant to know about the pendency of the suit and fraudulently obtained ex-parte decree.

(3). The plaintiff-respondent-decree-holder opposed the application for setting aside ex parte decree alleging that since the defendant-appellant has refused to accept the summons through registered post hence the ex parte decree was rightly passed by learned trial court. It is also alleged that since ex parte decree was passed on 17.10.1981 and the application for setting aside was moved on 21.3.81, therefore, it deserves to be rejected as barred by lapse of time.

(4). In support of his application for setting aside ex parte decree, the defendant-appellant examined himself as PW1, his father-Madan Lal as PW2. Plaintiff- respondent-decree-holder examined Rajendra Kumar as DW1, Vishnu Kumar Tawari as DW 2 and Nath Malji as DW3.

(5). The learned trial court on the basis of aforesaid evidence arrived at a conclusion that the registered envelop Ex.5 which bears the endorsement of refusal was sent on correct address. It is further held that irrespective of that the defendant- appellant has denied on oath that no such registered envelop was tendered to him and the postman had not been examined yet declaration made by the court about sufficiency, of service is unassailable in view of newly inserted proviso of O.9, R. 13, CPC which provides that an ex parte decree shall not be set aside merely on the ground of irregularity in the service of summons.

(6). I have heard learned counsel on both sides and perused the order under appeal. I have also critically examined the registered envelop Ex.5, bearing the endorsement of refusal.

(7). It is contended by learned counsel for the defendant- appellant that it is a settled principle of law that presumption about endorsement of refusal on a regis- tered envelop is rebuttable provided it was sent on correct address of the addressee. It is further contended that such presumption stands rebutted by the statement on oath of the addressee, deposing denial of refusal by him on the registered envelop. According to Mr. Manish Sishodia, learned counsel for the appellant, once endorsement of refusal on a registered envelop is denied by addressee on oath, burden of proof shifts on the person claiming correctness of such endorsement of refusal on the envelop by examining the postman and giving an opportunity to the addressee to examine him to test correctness of such endorsement. In support of his contention, learned counsel for the appellant placed reliance on a Full Bench decision rendered by Allahabad

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