Proper service of summons and adherence to the limitation period under the relevant provisions of the Limitation Act, 1963 are crucial in setting aside ex parte decrees.

Ram Surat Ram (Maurya),J.

1. Heard Sri Arvind Kumar Kushwaha for the petitioners and Sri Manu Singh as well as Sri Rajendra Kumar Yadav holding brief of Sri Pradeep Kumar Singh for the respondents.

2. Writ B No.35213 of 2016 has been filed against the order of Additional Commissioner dated 18.6.2015 allowing the appeal and setting aside ex parte decree dated 31.1.1981 as well as the order of Sub Divisional Officer dated 13.10.2014 rejecting the recall application of respondent-4, and the order of Board of Revenue dated 29.4.2016 passed in second appeal of the petitioners against the aforesaid order. Writ B No.35216 of 2016 emanates from the same impugned orders. Therefore, the facts stated in Writ B No.35213 of 2016, which are same, are dealt with in deciding these two writ petitions.

3. It is alleged that the petitioners filed a suit under Section 229-B of U.P. Act No.1 of 1951 for declaring them as bhumidhar with transferable right of plot no.619, area 2.07 acre of village Nagla Murli, majra Eta, pargana Etah Sakeet, tehsil and district Etah. The suit was decreed by the Sub Divisional Officer by order dated 31.1.1981. Thereafter on behalf of defendant-1 an application under order 9 Rule 13, CPC for setting aside the aforesaid decree was filed. In the affidavit filed in support of the application, it has been stated that summons of the suit were not served upon defendant-1 inasmuch as parentage of Sarvarakar of defendant-1 was also noted incorrectly. Fake service was effected upon him and the suit was decreed ex parte on 31.1.1981. The petitioners filed objection in the aforesaid application for setting aside ex parte decree. In the objection the petitioners had stated that summons were personally served on Sarvarakar of defendant-1 and thereafter he had also engaged two advocates. Later on he committed default as such suit was decreed by order dated 31.1.1981. The application for setting aside ex parte decree was heard by the Sub Divisional Officer, who by order dated 13.10.2014 held that decree was passed on 31.1.1981 while the application for setting aside ex parte decree was filed on 1.8.2013, thus, there was no reason for condoning the delay of 30-32 years in filing the application and there was no separate application for condonation of delay under Section 5 of the Limitation Act also. On this finding, he dismissed the application for setting aside the ex parte decree, by order dated 13.10.2014. Thereafter defendant-1 filed an appeal against the order dated 13.10.2014. The appeal was heard by Additional Commissioner, who by order dated 18.6.2015 held that summons were not personally served upon defendant-1. A perusal of the summons does not indicate that correct address was written in it of the noticee. The plaintiff himself signed as witness of service of summons. There was no independent witness of service of summons. Accordingly, it was held that service was not effected upon defendant-1 as such the decree was ex parte. So far as the delay condonation is concerned, he made observation citing judgments of this Court that liberal view ought to be taken in delay condonation but no specific order has been passed in this respect. He allowed the appeal by order dated 18.6.2015, set aside the orders of Sub Divisional Officer dated 31.1.1981 and 13.10.2014 and remanded the matter to Sub Divisional Officer to decide the suit afresh after hearing the parties. The petitioners challenged the aforesaid order in second appeal before the Board of Revenue, which has been dismissed by the Board of Revenue, U.P. by order dated 29.6.2016. Hence, this writ petition has been filed.

4. I have considered the arguments of the counsel for the parties.

5. The finding has been recorded by the Additional Commissioner that summons were not sent at proper address of defendant-1. The plaintiff himself signed as witness of service of summons and no independent witness signed on the summons. In such circumstances, finding has been recorded that s