JUDGMENT

B. P. DAS, J. — This appeal under Order 43, Rule 1 of the Code of Civil Procedure (in short ‘C.P.C.’) is directed against the order dated 17.7.2000 passed by the Civil Judge (Senior Division), Rayagada, in M.J.C. No.30 of 1997 rejecting an appli¬cation under Order 9, Rule 13 read with Section 151 of the C.P.C. praying for setting aside the ex parte decree passed against defendant No.1, i.e., the present appellant, in Money Suit No.42 of 1995.

2. The case of the appellant, as it transpires from the facts narrated in the appeal memo. as well as the impugned order and from the submissions made by the learned counsel for the parties, is that respondent No.1 herein filed the aforesaid Money Suit No.42 of 1995 in the Court of the Civil Judge (S.D.), Rayaga¬da, against defendant No.1- the General Manager, South Eastern Railways, Calcutta, and defendant No.2, one of the employees of defendant No.1, claiming compensation of Rs. 3,10,000/ -for the loss sustained by him in a railway accident. The plaintiff-respondent No.1, who was the owner-cum-driver of the truck bear¬ing registration No. OSS 5457, was carrying on the business of transportation of goods. While transporting coal of one A.K. Tiwari in his truck from Brajarajnagar to Rayagada, in the early morning of 12.4.1993 the plaintiff after crossing Bissam Cuttack found that the Level Crossing Gate at K.M. No.308/2 was open and the road was clear for vehicular traffic for which he approached the railway track but at that point of time the Link Express train which was coming from Visakhapatnam towards Raipur hit the truck and smashed the same causing bodily injuries to the plain¬tiff as well as other occupants of the truck, one of whom having died later on.

At this stage, it may be stated that along with the plaint the plaintiff-respondent No.1 had filed an application under Order 33, Rule 1 C.P.C. praying to allow him to sue as an indi¬gent person, which was registered as M.J.C. No. 5. of 1994, wherein the present appellant was arrayed as opposite party No.2. That M.J.C. application was allowed by order dated 25.10.1995 and on the same day the plaint was registered.

3. In the suit, as defendant No.1-appellant did not appear he was set ex parte and the suit was ultimately decreed ex parte by judgment dated 10.3.1997. Thereafter defendant No.1 filed an application under Order 9, Rule 13 read with Sec. 151 of the C.P.C. for setting aside the ex parte decree, which was regis¬tered as M.J.C. No. 30 of 1997. Along with the said application, defendant No.1 also filed an application u/s. 5 of the Limitation Act praying to condone the delay in filing the application for setting aside the ex parte decree. The trial Court by order dated 17.7.2000 dismissed both the applications. Against this order, defendant No.1 has come up with the present appeal.

4. According to the appellant, the plaintiff-respondent No.1 had not complied with the provisions of law regarding serv¬ice of suit summons on him. The Chief Claims Officer, Calcutta, came to know about the ex parte decree only on 30.4.1997 when he received the certified copies of the judgment and decree of the suit sent by the plaintiff and after the matter was examined at the level of different authorities, the M.J.C. petition was filed on 16.7.1997 along with the application u/s. 5 of the Limitation Act to condone the delay. The Court below in the impugned order observed that the above M.J.C. petition ought to have been filed on the re-opening day of the Court after the summer vacation, i.e., on 23.6.1997, and, therefore, there was a delay of 22 days in presenting the M.J.C. petition. According to the counsel for the appellant, the ex parte decree should have been set aside as the appellant had not been served with the suit summons either through ordinary process or registered post with acknowledgment due. It was also pleaded that there being no specific order of the Court for service of summons either through ordinary process or by reg