The main legal point established in the judgment is the mandatory nature of the procedural requirements for serving summons and setting aside an ex parte decree, as well as the justification for awaiting the certified copy of the judgment and decree before filing the application.

K.K. Lahoti, J.

1. Appellant has filed present appeal challenging the order passed by the Court beiow by which her application under Order 9, Rule 13, Civil Procedure Code was rejected.

2. Respondent Basant Kumar filed a suit bearing No. 7A/1994 on 7-3-1994. This suit was decided ex parte on 26-7-1994. The contention of the appellant is that summon was not served in the suit. On the other hand the respondent submits that appellant was duly served through her husband and was having knowledge of the suit. Another summon was issued in the name of mother of the applicant Smt. Girija Bai (Ex. D. 3), on which husband of appellant made an endorsement that she resides at Jhansi. This endorsement was made on 24-3-1994 and on the same day the husband of the appellant refused to receive the summon Ex. D. 3, issued to appellant and because of which ex parte order was passed against the appellant. The application filed by the appellant was also barred by time.

3. Learned counsel for the appellant submits:-

(a) that no summon was served on the appellant.

(b) the procedure on refusal of summon Ex. D. 4 not followed as required in the Rules 17, 18 and 19 of Order 5, Civil Procedure Code.

(c) there is no affidavit of serving officer and Court has not recorded the statement of serving officer on oath. Respondent has also not examined him in this regard.

4. Relying on judgment of this Court in case of Baijnath vs. Harishankar, 2001(2) MPLJ 142. Learned counsel for the appellant submits that ex parte decree passed in the case deserves to be set aside. The appellant got knowledge of the decree only when husband of the applicant became aware of ex parte decree on 30-3-1998. Thereafter she applied for certified copy on the same day which was received by her on 6-6-1998. On 6-6-1998 there was summer vacation and on the day when the Court open on 26-6-1998 this application was filed which is within time. The provisions of Order 9, Rule 13, Civil Procedure Code are not penal in nature. Reliance is placed on the judgment of Apex Court in case of G. P. Shrivastava vs. R.K. Raizada and others. 2000)3 SCC 54.

5. Learned counsel for the respondent submits that:-

(a) summons were duly served on appellant,

(b) the appellant was having knowledge in respect of pendency of the suit and in view of second proviso Rule, 13 Order 9, merely on the ground of irregularity in the service of summon the ex parte decree cannot be set aside,

(c) the application was barred by time. On 30-3-1998 appellant was having knowledge of the ex parte decree. She ought to have filed an application for setting aside ex parte decree within 30 days. There was no necessity to await the certified copy of the judgment and decree. The application can be filed without certified copy of the decree so the application filed by the appellant was barred by time.

6. Considering the aforesaid contention raised by the parties, firstly the summon Ex.D. 4 seen. From the endorsement of the Ex.D. 4 it appears that the process server tried to serve the summon on Govind Narayan Singh, and on his refusal the summon was affixed on the house. But, this service has not been verified by the process server by affidavit nor he was examined in the case by the trial Court. Apart from this when the service was seriously disputed by the appellant in the trial Court it was obligatory on the part of respondent to examine process server who has affected the service. In absence of such, service cannot be held to be valid, it is contrary to the provisions of Rules 17, 19 of Order 5, Civil Procedure Code. This Court in the case of Baijnath vs. Harishankar reported in 2001 (2) MPLJ 142 has considered this question and held:-

19. In Kunja vs. Lalaram and others. 1987 MPLJ 746, it has been laid down that the provisions of Rule 19 of Order 5 of the Code are mandatory and cast a duty on the Court to make a judicial order while accepting service effected in the manner prescribed under Rule 17 of Order 5 of the Code. It has further been o