Judgment Sen, J. An application under Order 9, Rule 13 of the Code of Civil Procedure filed by the defendant in Title Suit No. 47 of 1981 was registered as Miscellaneous Case No. 73 of 1981 of the forth Court of the learned Subordinate Judge at Alipore. The said application having been heard on contest on evidence has been dismissed by the two Courts below concurrently and feeling aggrieved the defendant has preferred the present revisional application. 2. The suit was one for specific performance of a contract for sale. The suit was filed on June 16, 1981 on which date the Court directed issue of summons. Summons was issued both through the process server as also by registered post simultaneously and both of them were returned with a report of refusal on July 16, 1981. The Court did not accept service as satisfactory and directed the plaintiff to take steps by July 20, 1981 on which date the plaintiff filed an application under Order 5, Rule 20 of the Code which prayer was allowed and July 31, 1981 was fixed as the returnable date. On July 31, 1981 the Court accepted the return of service under Order 5, Rule 20 of the Code and fixed the suit for ex parte hearing on August 11, 1981. The suit was heard ultimately On September 2, 1981 ex parte and was decreed on November 5, 1981. The application out of which the present revisional application arises was filed within 30 days from the date of the decree on December 1, 1981. In the application the defendant made out case that the summons of the suit was never served upon him and that he had no knowledge of the suit at all material time. He further pleaded that one, Kunja Behari Sharma who happened to be present in the Court of the learned Subordinate Judge on September 2, 1981 informed him of the suit on November 6, 1981. He could not inform the petitioner about the suit earlier because he had to go his native place at Rajasthan because of his mother's illness where from he returned on November 5, 1981. Having come to know about the suit on November 7, 1981 he made enquiries through a lawyer and came to know about the particulars of the suit and the decree only on November 7, 1981. Having come to know about the suit on November 7, 1981 he made enquiries through a lawyer and came to know about the particulars of the suit and the decree only on November 7, 1981. Hence, he filed the application as he has suffered serious prejudice by the ex parte decree that was obtained against him. 3. This application was contested by the plaintiff-opposite party, who denied all the material allegations made in this application. According to the plaintiff the summons of the suit was duly served and that the defendant had every knowledge about the pending suit at all material times, but as the defendant had no defence to put forward he allowed the suit to be decreed ex parte only to make an application under Order 9, Rule 13 of the Code to delay the litigation. 4. Parties adduced evidence principally oral evidence in support of their respective cases. The return of summons was made an exhibit, being Ext. B and the postal return was exhibited as Ext. A in the proceeding. The learned Subordinate Judge on consideration of the evidence thus adduced refused to believe the defendant's case that the summons was not served upon him. Necessarily the learned Subordinate Judge also disbelieved him about the case made out by him regarding his deriving knowledge about the suit. On such finding the application was dismissed. On an appeal by the defendant those findings as also the decision were affirmed. Feeling aggrieved the defendant has now preferred the present revisional application. 5. Having heard the learned Advocates it appears to us that both the Courts have failed to approach the case of the petitioner from the correct stand point. Order 9, Rule 13 of the Code contemplates two situations in which an ex parte decree is to be recalled. Firstly, if the decree has been obtained without due service of the summons, then such a decree cannot be sustained and has to be set aside on application being made under Order 9, Rule 13 of the Code, by the defendant. Alternatively, even where such summons has been duty served, if the defendant makes out sufficient cause for his nonappearance to the satisfaction of the Court, the Court may set aside the ex parte decree and restore the suit for retrial. 6. Alternatively, even where such summons has been duty served, if the defendant makes out sufficient cause for his nonappearance to the satisfaction of the Court, the Court may set aside the ex parte decree and restore the suit for retrial. 6. In the present case we find that the petitioner had made out a case of failure of due service and that aspect was neither considered nor appreciated by the two Courts below. As we have pointed out hereinbefore the Court on June 16, 1981 directed issue of summons. Summons was issued through a process server and the process server's report indicates that on July 3, 1981 when he went to serve a summons the defendant refused to accept the summons by signing the acknowledgement thereof and in such situation the summons was served by hanging. The order of the learned Judge dated July 16, 1981 clearly records absence of satisfaction on the part of the Court that such service was proper service. So far as the summons through the registered post is concerned, it appears to us that such a summons was posted at the Elgin Road Post Office on June 23, 1981. Summons issued by the Court at Alipore was so posted because as we are told it was handed over to the plaintiff for such posting and it was the plaintiff who posted the summons at the Elgin Road Post Office. We feel no hesitation in strongly disapproving this system prevailing. As we are told, in the Alipore Court. If it is a summons to be served by the Court at the Court's instance, it should be so posted through the agencies of Court and not through the agency of the litigant giving scope for allegations of fraud and suppression. Be that as it may, it being posted on June 23, 1981 was returned on the day after with an endorsement of refusal. There is reason to doubt the bona fide of such an endorsement and it appears to us that the learned Subordinate Judge did accept it is due service when he directed the plaintiff to take necessary steps. It is obvious that he called upon the plaintiff to take necessary steps for fresh service. In that background the plaintiff came with an application for substituted service. It is obvious that he called upon the plaintiff to take necessary steps for fresh service. In that background the plaintiff came with an application for substituted service. The application reads as follows :- As the summons was served through the process server by hanging and the same has not been accepted as satisfactory and as the registered summons has been returned with an endorsement of refusal there has been order by the Court to serve the defendant under the provisions of Order 5, Rule 20. Both the plaintiff and the defendant reside in the same house. As the defendant had been residing in the suit premises at all material times when the earlier summons was served and when he is still residing there, the earlier service not having been accepted as good service, the plaintiff is applying for substituted service in terms of the Court's order. Nothing more was said in this application. It is quite evident to us that no ground for substituted service as contemplated by Order 5, Rule 20 of the Code was made out in this application. On the other hand, the application contained a misstatement that Court had already directed substituted service and it is to fulfil such a direction that such application is being made. On this application the following order was passed. "The plaintiff files a petition and the affidavit of the plaintiff praying for substituted service of summons is put up. Considered, prayer is allowed. Issue summons under Order 5, Rule 20 fixing 31.7.81 for return". 7. We have doubt in our mind as to whether the learned Judge had at all the application before him when he made the order. Had he had the application before him it would have been evidence to him that the application contains a misstatement and moreover does not make out any case for substituted service. It is obvious to us that the earlier two services were returned with an endorsement of refusal. Such refusal is good service if it is accepted by the Court taking it to be a bona fide return. For good reasons the Court did not accept such service and as such the only course open at this stage was to direct a fresh service in normal way unless some ground contemplated by Order 5, Rule 20 of the Code was being made out. For good reasons the Court did not accept such service and as such the only course open at this stage was to direct a fresh service in normal way unless some ground contemplated by Order 5, Rule 20 of the Code was being made out. That not having been made out the order for substituted service, in our view, was not in accordance with law. If it is not so then the resulting service cannot be considered to be due service within the meaning of Order 9, Rule 13 of the Code. The application under Order 9 Rule 13 having been filed well within 30 days from the date of the decree and absence of due service, being well-established on the records, the Court had no other alternative but to set aside the ex parte decree. In this view it is not necessary for us to go into the other question, namely whether the defendant's allegation about the knowledge was true on false. It appears to us that the defendant had not been believed in that regard only because the learned Judges in the Courts below proceeded on the basis that there was due service of summons upon him. But that finding in our view is clearly unsustainable because the actual facts with regard to such service were never taken into consideration by the learned Judge. That apart as we have indicated hereinbefore knowledge of the application is wholly immaterial because the application was filed within the period of limitation and is based upon the ground of absence of due service of the summons. 8. In the result, this revisional application succeeds. The orders passed by the two Courts below being set aside, the application set aside, the application under Order 9, Rule 13 of the Code of Civil Procedure is allowed. The ex parte decree dated November 5, 1981 being set aside, we direct the suit to be restored for trial. Let the records be sent down forthwith and the order be communicated to the Court below. Sanyal, J.: I agree.