( 1. ) THE appellant/defendant No. 1 has directed this appeal under section 100 of the CPC being aggrieved by the judgment and decree dated 21-7-93 passed by the District Judge, Sehore in Civil Regular Appeal No. 24-A/93 confirming the ex parte judgment and decree dated 2-3-93 passed by the iind Civil Judge Class II, Sehore in Civil Original Suit No. 158-A/92, whereby the suit of the respondent for possession of the disputed land and mesne profit, has been decreed ex parte.

( 2. ) THE brief facts giving rise to this appeal are that the respondent herein filed the aforesaid suit for possession and mesne profit against the appellant with respect of the agricultural land bearing Survey No. 371/1/1 area 2 acre, situated in Village Bhaukhedi Tehsil Ichchawar. After filing the suit, the summons was directed against the appellant. The same was not served for two occasions, on which, the respondent filed an application under Order 5 Rule 20 of the CPC for substituted service. The service of the notice by affixture was directed by the Trial Court vide order dated 17-12-92. In compliance of such order, as alleged, in spite of service of the summons, the appellant did not appear on the date fixed before the Trial Court, on which, the case was proceeded ex parte against him on dated 30-1-93. Subsequently, after recording the evidence of respondent No. 1, an ex parte decree was passed by the Trial Court. On filing the appeal by the appellant herein, the same was upheld by the Appellate Court as stated above against which the appellant/defendant has come forward to this court.

( 3. ) THIS appeal was admitted on 14-2-94 on following substantial question of law:-

"whether the summons of the suit was served on the present appellant as defendant in the Court below in accordance with law and an ex parte judgment and decree was rightly passed by the Court below. "

( 4. ) THE appellants Counsel, while supporting his case, argued that initially the suit was filed on 18-8-92, on which the summons of the suit was issued to the appellant vide order dated 20-8-92. The summons was received back unserved with a note that appellant had gone out of station, on which, again fresh summons was directed vide order dated 22-9-92. On issuing the same, again it was received unserved with a report that appellant had gone to Bhopal without leaving any information as to when he will come back, on which, again fresh summons for the date 30-3-93, was directed vide order dated 16-12-92. Subsequently, on 17-12-92, without passing any speaking order, the application of the respondent filed under Order 5 Rule 20 of the CPC was allowed and the directions to serve the summons by affixture was given by the Trial Court. In compliance of the same, the summons was issued but without annexing the copy of the plaint which is apparent from the record of the Trial Court. He also said that service of the summons through affixture has not been made in accordance with the provisions enumerated under Order 5 Rule 20 of the CPC as the copy of the summons was not affixed on the conspicuous place of the Court-house, as well as, it was affixed at the correct residence of the appellant, has not been proved by proper report or the affidavit of the Serving Official of the summons or by examining such Official before the Trial Court. In such premises, in view of the provisions of Order 5 Rule 2 and Rule 20 of the CPC, it could not be inferred that the summons was duly served on the appellant and in the lack of service of the summons in accordance with the provisions, the order of the Trial Court proceeding ex parte against the appellant, is not sustainable and, in pursuance of it, the judgment and decree of the Appellate Court is also not sustainable and prayed to answer the aforesaid question accordingly in favour of the appellant and remit back the matter to the Trial Court after setting aside the impugned judgment and decree for fresh adjudication after extending the opportunity of he