1. Heard finally with the consent of the learned counsel for the parties.

2. This appeal has been preferred for setting aside ex parte judgment and decree dated 25.10.2007 passed by the Court of 8th ADJ Gwalior in Civil Appeal No. 12A/07. By the impugned order, an application under Order 41 Rule 21 of CPC submitted by the appellant has been dismissed.

3. It is contended on behalf of the appellant that the appellant was residing out of Gwalior for more than 4-5 years when service of notice in Civil Appeal No. 22A/06 was tried to be effected. In the copy of the notice, it was endorsed on 8.9.2007 that the appellant was residing out of Gwalior for more than 4-5 years. Though the learned lower appellate Judge issued notice through publication, but the same having been published in Gwalior edition of news paper is not sufficient and is invalid.

4. Shri D.S. Bhadoria, learned counsel appearing for the respondent submitted that the endorsement on the notice was made by the father of the appellant and therefore that shall be deemed as service.

5. On perusal, it is found that firstly, it has been clearly endorsed on the copy of the notice that the appellant was residing out of Gwalior since last 4-5 years; secondly, it is nowhere mentioned in the notice that the father of the appellant was residing with him at the relevant time. This being so, it cannot be treated as service within the meaning under Order 5 Rule 15 of CPC. Since the appellant was residing out of Gwalior at the relevant time, publication of notice ought to have been made in a news paper having circulation beyond the territory of Gwalior. Thus, it is found that the there was no service on the appellant in Civil Appeal No. 12A/07. Consequently, the appeal is allowed, however, with the costs of Rs. 1,000/-, which shall be paid to the respondents or their counsel during the course of the day.

6. Resultantly, the appeal is allowed subject to aforesaid costs. Application under Order 41 Rule 21 of CPC is hereby allowed. Ex parte judgment and decree passed against the appellant is set aside. Learned lower appellate Court is directed to re-decide the civil Appeal No. 12A/07 in accordance with law after granting opportunity to both the parties, who shall appear before the lower appellate Court on 21.7.2010. No order as to costs in this appeal.