The main legal point established is that for setting aside an ex parte decree, the court must be satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

( 1 ) THE plaintiff of the suit has filed this revision against the order dated 31,10. 1994 passed by viiith Additional Civil Judge, Agra in Misc. Case No. 12 of 1994, allowing the application of the respondent No. 1 under Order IX Rule 13, C. P. C. and setting aside the ex parte decree dated 7. 3. 1987 in Original Suit No. 103 of 1983.

( 2 ) THE applicant society filed Suit No. 103 of 1983 against the opposite parties. The above suit was decreed ex parte on 7. 3. 1987. Thereafter the opposite party No. 1 moved an application for setting aside above ex parte decree on the grounds, inter alia, that the summons of the suit had not been served upon it. The summons were neither tendered by the post man or Process Server upon it, nor it were ever refused to accept. The plaintiff/applicant obtained ex parte decree by concealing the above facts and alleged service of summons on the opposite party No. 1, was said to have been effected through publication in a newspaper, which was not daily news paper nor had any circulation in the area where the opposite party No. 1 had its office. The opposite party no. 1 came to know about the decree of the suit for the first time on 19. 1. 1994, when the applicants pairokar Devi Prasad informed to its Secretary that he had obtained decree and was getting the sale deed executed. The opposite party No. 1 got the file inspected on 25. 1. 1994 and moved the application.

( 3 ) THE above application was opposed by the applicant, mainly on the ground that the opposite party No. 1 had full knowledge of the suit and deliberately avoided the service of summons by refusing to accept the same. The notices were ultimately published in a news paper which had wide circulation in the locality. The opposite party No. 1 also wrongly alleged the source of knowledge of decree. It further contended that the opposite party No. 2 had filed objections against the execution, which had been dismissed by the Executing Court and she preferred Civil revision No. 142 of 1992 before this Court in which the opposite party No. 1 was also served.

( 4 ) THE opposite party No. 1 filed Case No. 118 of 1985 before Deputy Registrar/assistant housing Commissioner. The applicants filed an affidavit in the said case in which it mentioned about the pendency of Suit No. 103 of 1983 In the Court of Civil Judge, Agra. The opposite party No. 1 was also party in said case and had full knowledge of the pendency of suit much before the passing of the ex parte decree.

( 5 ) LEARNED Civil Judge on considering the case and evidence of the parties held that after institution of suit on 1. 3. 1983, notices/summons were first sent to defendants through Advocate commissioner. but according to the report of the Advocate Commissioner, the notice could not be served on the opposite party No. 1 and it was returned unserved. Thereafter, notices were sent through registered post and the same was received back undelivered for want of complete address and the addressee was not found residing at the address mentioned in the notice. Therefore, the summons were never served upon the opposite party No. 1 and other defendants. It never refused to accept any summons sent to it. The summons and notices were also issued through process server and the same were also returned unserved.

( 6 ) REGARDING service by publication, the trial court held that summons were published in the news paper "aaj Ka Hangama", a small news paper published from Agra. It was not a daily news paper. There was nothing on record to show that the above news paper was having wide circulation in the locality, where the defendants resided and carried on the business. Hence the summons were never served on the defendants/ opposite party No. 1 in accordance with law.

( 7 ) REGARDING the objections filed by the applicant before the Deputy Registrar/housing commissioner, U. P. on 7. 3. 1985, the trial court held that on going through the entire objection of the applicant, it simply sh