JUDGMENT

R. DASH, J. - This Appeal is in challenge of the order dated 11.9.2000 passed by the learned Civil Judge (Senior Division), Berhampur in M.J.C. No. 261 of 1998 arising out of M.S. No. 122 of 1996. Vide the impugned order the learned lower Court has dismissed the M.J.C. rejecting a petition under Order 9, Rule 13 C.P.C. read with Section 5 of the Limitation Act.

2. The appellants are the petitioners-defendants before the learned trial Court. The respondent herein had filed M.S. No. 122 of 1996 against the appellants-defendants for realization of Rs. 5,99,500/- with interest and cost. Impugned order reflects that D.1 is a Private Limited Company represented by its Chairman Sri C.S.Raju. D.2 is Sri C.S.Raju who is the Chairman of D.1 Company. Summons was issued to each of the defendants through the Court as well as by registered post. Summons sent to the petitioners through Court process was returned unserved due to the absence of the defendants. But postal A.Ds. were received by the Court showing that the summons sent by registered post was received in the office of the petitioners. The service of summons by registered post was held to be sufficient. Since the defendants did not turn up they were set ex parte. The learned trial Court proceeded to record evidence in the absence of the defendants and ultimately decreed the suit ex parte vide judgment dated 23.12.1997. Consequently, decree was sealed and signed on 9.1.1998.

3. On 28.11.1998 the defendants filed the petition under Order 9 Rule 13 C.P.C. along with a petition under Section 5 of the Limitation Act alleging that summons was not duly served on either of the defendants. It was only on 27.11.1998 the defendants came to know about the ex parte decree when they had come to the plaintiff's office to know about the loan outstanding. Immediately thereafter they contacted their Advocate and filed the petition to set aside the ex parte decree and to allow them to take part in the suit.

The plaintiff resisted the petition contending that in the suit notice was duly served on the plaintiffs through Court as well as post. It was also contended that the petition was grossly barred by limitation.

4. Manager of D.1 was examined as a witness. The plaintiff did not adduce any evidence. Analyzing the evidence and on verification of the record, the learned Court below held that summons sent to the defendants by post was received in their office by one of the security staff. Therefore, the learned Court concluded that the summons was duly served on the defendants. So far the prayer for condonation of delay is concerned, the learned Court below simply observed that the plea taken by the defendants was neither believable nor acceptable.

5. On behalf of the defendants-appellants it is argued that there was no due service of summons on the appellants and therefore, the ex parte decree is liable to be set aside. On the other hand, the learned counsel for the respondent argues in support of the impugned order and submits that the order is not liable to be interfered with.

6. It is observed by the lower Court that summons sent to the appellants through Court process was returned unserved with a report that the Chairman and the Manager of Srinivas Marine Exports (India) Private Limited were absent from the headquarters, but the summons sent by registered post was received by one security staff employed in the office of appellant No.1. Therefore, it is to be considered as to whether the summons sent by post which was received by a security staff can be said to be duly served on the appellants.

7. As already stated the appellant-defendant No.1 is a Private Limited Company represented by its Chairman Sri C.S.Raju and appellant-defendant No.2 is Sri C.S.Raju himself. Summonses on both the defendants were to be served on Sri C.S.Raju at Village-Revekutturu, P.O./P.S.Gopalpur-on-Sea, District-Ganjam where the office of Hatchery Division of M/s. Srinivas Marine Exports (India) Pvt. Ltd. (Defendant No.1)