The main legal point established in the judgment is the importance of due service of summons and the necessity of complying with the mandatory provisions of Order 5, Rule 19 of the Civil Procedure Code, in setting aside an ex parte judgment and decree.

V.K. Agarwal, J.

1. This appeal is directed against the order dated 12-2-1997 in M.J.C. No, 22/1994, by Second Additional District Judge, Bilaspur, dismissing the application of the appellant under Order 9, Rule 13 read with section 151, Civil Procedure Code, for setting aside ex parte judgment and decree.

2. Undisputedly, the plaintiff/respondent No. 1 Harishankar filed a suit registered as Civil Suit No. 11-A. 1992, against the Defendant No. 1/appellant and Defendants/respondents No. 2 to 4 for partition, possession, etc. It appears from the record of the said Civil Suit that on 10-7-1992, the plaintiff/respondent No. 1 was permitted to sue as an indigent person and the summons to the defendants for settlement of issues were directed to be issued, and the case was fixed for 14-8-1992. The order sheet dated 14-8-1992 in the suit discloses that the defendants were absent on that day. It was reported that Defendants Nos. 2 and 4 were duly served with summons; while defendants No. 1 and 3 had refused to receive summons. In view of the absence of the defendants, the trial Court ordered that the case shall proceed against them ex parte. After recording evidence, judgment was delivered in the suit on 9-7- 1993.

3. The defendant No. 1/appellant on 6-8-1994, filed an application under Order 9, Rule 13 read with section 151, Civil Procedure Code, in the trial Court, which was registered as M.J. C. No. 22/1994. In the said application, it was stated by the defendant No. 1 /appellant that though the process server reported that he had refused to accept service of summons, but in fact the process server never attempted service on the defendant No. 1/appellant, and that he never went to the residence of the defendant No. 1/appellant on 6-8-1992 for service of summons and that the latter did not refuse to take summons. It was further stated in the application that the defendant No. 1/appellant had no knowledge about the pendency of the suit, nor about the passing of the ex parte judgment and decree. It was further averred in the application that defendant No. 1/appellant came to know about the ex parte judgment and decree only on 17-7-1994, when Jagdish- respondent No. 2, came along with the Commissioner for measurement and informed the appellant Baijnath that they had obtained a decree in the suit. The defendant No, 1 then made enquiries about the said suit. It was further averred by defendant No. 1/appellant that full information about the said suit could be gathered by him on 6-8-1994. Thereafter, he contacted his counsel and filed application under Order 9, Rule 13, Civil Procedure Code, for setting aside the said ex parte judgment and decree dated 9-7-1993.

4. The said application was resisted by plaintiff/respondent No. 1 Harishankar. He denied the averments made in the above application. According to him, the process server had attempted service of summons which was refused by the appellant. Therefore, the service of summons was made by affixture of a copy of the summons on the house of the appellant. The report of the process server was accordingly appended. The trial Court therefore justifiably proceeded ex parte against the Defendant No. 1, Baijnath.

5. The learned trial Court after recording evidence of the parties, held by the impugned order that the summons for the date of hearing in the suit, i.e., for 14-8-1992, was refused by defendant No. 1/appellant, Baijnath, hence service of summons on him was held to be proper. Accordingly, the appellant's contentions regarding non-service of summons on him were rejected. Consequently his application under Order 9, Rule 13, Civil Procedure Code, praying that ex parte judgment and decree in Civil Suit No. 11-A/1992 be set-aside, was rejected.

6. The learned counsel for the appellant has submitted that the learned trial Court did not properly appreciate the contentions raised by the defendant/appellant Baijnath. It has been contended that the record of the trial Court as well as M.J.C. di