Honble VERMA, J.–This civil misc. appeal has been filed against the order dated 23.8.1997 passed by the Additional District Judge, Kishangarh Bas, District Alwar by which order the application filed under Order 9 Rule 13 CPC was dismissed.

(2). The appellant was the defendant in the suit filed by the plaintiff- respondent for specific performance basing it on the agreement executed by late Balaram. The appellants are the successors of said Balai.am. It was the case of the applicant-defendant that Balaram was never served but still an ex-parte order was passed on 27.10.1993. Late Balaram had moved an application for setting aside the ex-parte decree. Balaram died during the pendency of the said application and the present appellants were substituted in his place.

(3). It is the case of the appellant that for the reason that Balaram had never been served in person and only because of the reason that some report was made to the effect that Balaram had refused to accept the service, it cannot be said that it was a proper service. Bharat Singh process server had not appeared ,i@ witness in the witness box. The application for setting aside the ex-parte decree was moved as soon as said Bal

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