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 Balaram had come to know on 2.2.1994 of such a decree aforesaid.

(4). Application under Section 5 of the Limitation Act was filed. The plaintiff had opposed the setting aside of the decree. The ex-parte decree was passed on 27.10.1993. It was the case of the plaintiff in o posing the application that even the counsel had sent a notice dated 14.12.1993 to Balaram which is said to have been received by Nirmal Kumar and even reply to the notice dated 16.12.1993 was sent. So far the service of said Balaram was concerned, a report dated 24.8.1993 was made by the process server that he had gone to village Khanpur for serving Balaram who had refused to accept the notice and that he had pasted the service on the house.

(5). Per contra the case of the said Balaram was that he was not in the village at all and that he was living with his son at Bikaner. It was found by the trial court that the contention of said Balaram cannot be accepted to the effect that he had no knowledge, therefore, the application was dismissed on the point of limitation as well 6. Even though no personal service was made on late Balaram and on the report made by the process server to the effect that he had visited the village and Balaram had refused to accept the notice and he had pasted the notice on t e wag in open place, the trial court should have got the process server produced in the court for the purpose of examination specially when the , appellant defendants were denying the fact that the process server had ever visited the village and had made any such report and even had pasted.

(7). Order 5 Rule 10 prescribes the mode of service which is to be made by delivering or tendering a copy thereof signed by the Judge or such officer to the defendant. Rule 12 prescribes that as far as possible service shall be made on defendant in person unless he is an agent empowered to accept service. Rule 15 provides that in case the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he had no agent empowered to accept the service of the summons on his behalf, in such situation the service may be made on any adult member of the family who is residing with him. Rule 17 of Order V prescribes that where the defendant or his agent or such other person refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or there is no agent empowered to accept service of the summons on his behalf nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part. Rule 19 provides that w

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