M.Y. Eqbal, J.

1. This appeal by the defendant No. 1 to 3 is directed against the judgment and order dated 25.4.1996 passed by Sub Judge II Lohardaga in Miscellaneous Case No. 8/95 whereby he has rejected the petition filed by the appellant under Order IX, Rule 13. CPC and refused to set aside the ex parte decree passed in title suit No. 15/92.

2. The plaintiffs-respondents No. 1 and 2 filed the aforementioned suit against the appellants and defendant- respondent No. 3 for a decree of specific performance of contract. The said suit was decreed on context against respondent No. 3 and ex parte against the appellants.

3. The appellants thereafter filed an application under Order IX, Rule 13, CPC for setting aside the decree which was registered as Miscellaneous Case No. 8/95. The case of the petitioners-appellants was that no summon or notice of the suit was ever served on them and they have no notice or knowledge about the ex parte decree. It was contended on behalf of the said defendant-petitioners that appellant Nos. 1 and 2 are the residents of Raipur, Madhya Pradesh and no summons were served on them.

4. The learned Sub Judge Lohardaga dismissed the said miscellaneous case and refused to set aside the ex parte decree. Hence this appeal.

5. Mr. P.K. Prasad learned counsel appearing for the defendant-appellant drawn my attention to the order sheet of relevant deeds of Title Suit No. 15/91 and submitted that summons of the suit was not served upon the appellants in accordance with law. Learned counsel further submitted that the Court below has committed error of law in disposing of the application in the manner not provided in law.

6. No one appears on behalf of the respondents inspite of service of notice. From perusal of the impugned order it appears that the Court below formulated three points for consideration :--

(1) Whether the defendants-appellant have any interest in the suit.

(2) Whether the ex parte decree will cause any prejudice to the defendants.

(3) Whether the defendant have the knowledge about the suit.

7. The first two issues formulated by the Court below are irrelevant in as much as the main question that has to be decided in an application proceeding for ex parte decree is whether summons or notice of the suit was served upon the defendants and they have knowledge about the hearing of the suit.

8. From perusal of the order sheet of the suit it appears that although the suit was instituted on 23.9.1991 but the Court fee stamp was finally paid after about two years i.e. on 4.1.1993. The order sheet dated 4.1.1993 shows that the Court had ordered for issuance of summon by ordinary process and also registered summon. There is nothing on record to show that whether process for service of summon by ordinary process was either taken by the plaintiff or ever served upon the defendants-appellants. On 16.6.1993 the Court below passed an order to the effect that registered summon returned with refusal. Thereafter it appears from the record that in the meantime suit was transferred from one Court to another Court. The transferee Court proceeded with the hearing of the suit ex pane against the appellants and the suit was decreed.

9. The defendants-appellants affidavit denied the service of summons and also deposed on oath that summons was not served upon the appellant Nos. 1 and 2 and they had no knowledge about the hearing of the suit. From perusal of the envelope alleged to have been returned with the endorsement of refusal there is no postal seal. If the post man has not been examined to substantiate the service of summons on refusal. Despite all these facts the Court below has erroneously recorded a finding that summons suit was served upon the appellants.

10. The Court below also recorded a finding that the appellants have knowledge about the suit and therefore, ex parte cannot be set aside. From the evidence adduced by the parties in the said proceeding it does not appear that the defendants-appellants have admitted that