This appeal is directed against the order dated 18. 8, 83 passed by the Assistant District Judge, Barpeta rejecting the petition filed by the appellant under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed in Money Suit No. 13 of 1982. The fact of the case, briefly stated, are as follows i The predecessor of the respondents, Rajani Kanta Choudhury, as plaintiff, filed a money suit claiming damages amounting to Rs. 50,000/- against the appellant for malicious prosecution. The suit was instituted on 24.11.82. Summons was issued by registered post. The acknowledgement was returned on 20.4.83 showing, receipt of the postal article containing the summons not by the appellant but by one Niroj Kumar Das. The plaintiff stated before the Court that Niroj Kumar Das, on whom the summons was served, was none else but the son of the petitioner and, as such, the service of summons on him should be declared to be the service on the defendant. The Court, accordingly, held that the service on the son of the defendant-appellant to be service on the defendant himself and fixed the case for ex parte hearing on 6. 5. 83. On that day the suit was decreed ex parte. On 19. 5. 83. the defendant filed a petition for setting aside the ex parte decree on the ground that he did not receive the summons. His case was that he went to Guwahati on 18.4.83 and learnt that his married daughter was lying ill at her home at Tongla. He went to Tongla and had to stay there till 28. 4. 83. He came back to his home on 29.4. 83 and himself fell ill and remained under treatment of doctor till 8. 5. 83. On 8. 5. 83 he got the envelope containing the summons lying on the table of his son. He came to Barpeta on 9. 5. 83 and filed the petition for setting aside the ex parte decree. The said petition was rejected by the learned Assistant District Judge, Barpeta. Aggrieved by the aforesaid judgment, the defendant has filed the present appeal before this Court. The main submission of Mr. J. N. Sarraa, learned counsel for the appellant is that admittedly no summons was served in the instant case on the defendant-appellant. The summons was served on his son. Aggrieved by the aforesaid judgment, the defendant has filed the present appeal before this Court. The main submission of Mr. J. N. Sarraa, learned counsel for the appellant is that admittedly no summons was served in the instant case on the defendant-appellant. The summons was served on his son. The appellant did not know of the receipt of the summons or the pendency of the suit till after the ex parte decree was passed. In the petition under Order 9 Rule 13 all these facts were stated at length. The moment the appellant could know of the ex parte decree, he took proper steps for setting aside the same. According to Mr. Sarma, the learned Court below was not justified in accepting the service of summons on the son of the appellant as valid service on the appellant. Mr. K. Choudhury, learned counsel for the respondents on the other hand, submits that the statements made by the appellant in the petition under Order 9 Rule 13 were not correct inasmuch as he himself was present when the summons was served on his son and it was at his instance; that the summons was delivered to his son. In other words, his case is that the service of summons on the son was a valid service on the defendant. In reply, counsel for the appellant submits that if the appellant was present at the time when the summons was sought to be served, it should have been served on him. It could not have been served on anybody else. In the even to this refusal it could have been returned with an endorse­ment 'refused'. The submission is that Rule 15 of Order 5 has no application to the facts of the present case. I have carefully considered the rival submissions. I have perused the relevant rules of Order 5 of the CPC dealing with service of summons. Rule 12 of Order 5 lays down that the service should be made ob the defendant in person, unless he has an agent empowered to accept service. It reads ; "12. I have carefully considered the rival submissions. I have perused the relevant rules of Order 5 of the CPC dealing with service of summons. Rule 12 of Order 5 lays down that the service should be made ob the defendant in person, unless he has an agent empowered to accept service. It reads ; "12. Service to be on defendant in person when practicable, or on his agent-Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case set vice on such agent shall be sufficient." Rule 15 provides for service of summons on an adult member of the defendant's family in certain circumstances. It provides : "15. Where service may be on an adult member of defendant's family.-Where in any suit the defendant is absent from his reside-ce at the time when the service of summons is sought to be affected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of >he summons on his behalf, service may be made on any adult member of the family, whether male or female who is residing with him. Explanation-A servant is not a member of the family within the meaning of this rule." Rule 17 lays down the procedure to be followed in a case when a defendant refuses to accept service or cannot be found. Rule 19A deals with pro edure for issue of summons for service by post. Explanation-A servant is not a member of the family within the meaning of this rule." Rule 17 lays down the procedure to be followed in a case when a defendant refuses to accept service or cannot be found. Rule 19A deals with pro edure for issue of summons for service by post. Sub-rule (2) thereof reads % "(2) When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in the sub-rule be made of with standing the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons." From a reading of the various rules of Order 5 of the CPC more particularly Rules 12, 15, 17 and 19A, it is evident that the law contemplates service of summons on the defendant in person only, except in certain specified circumstances. One of such circumstances, as specified in Rule 12 of Order 5 is that the defendant, has an agent empowered to accept the service. In such a case, service on such agent would be service on the defendant. Another exception to the rule regarding service on the defendant in person is contained in Rule 15 which provides for service of summons on an adult member of the defendant's family in certain circumstances. These circumstances are that (1) the defendant is absent from his residence at the time when the service of summons is sought to be affected on him at his residence, (2) there is no likelihood of it is being found at the residence within a reasonable time and (3) he has no agent empowered to accept service of the summons on his behalf. All these three conditions are cumulative. All these three conditions are cumulative. They are conditions precedent for service of summons on any adult member of the family of the defendant. If any of these conditions is absent, service of summons on any adult member of the defendant's family would not be deemed to be service on the defendant. Sub-rule (2) of Rule 19A also provides that in a case where summons is issued for service by post, the Court can declare the summons to have been duly served on the defendant when - (1) an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or (2) the postal article containing the summons is received back by the Court with an endorsement to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him. One of the aforesaid two conditions must be fulfilled before a service of summons by post can be declared to be valid service under the aforesaid sub-rule. In the instant case it is not the case of the respondent-plaintiff that the son of the defendant on whom the summons was served was his agent. It is also not disputed that the postal article containing summons was not served on the defendant. The case of the plaintiff is that the defendant was present when the summons was served on his son. This, of course, has been denied by the defendant. Be that as it may, if the defendant was present, the summons ought to have been served on him and none else. In the event of his refusal to accept the same it could have been returned as contemplated by sub-rule (2) of Rule 19A of Order 5 with an endorsement to the effect that the defendant had refused to take delivery of the same. That was not done in the instant case. The alleged service n the son of the defendant under the facts and circumstances of the case cannot be deemed to be a valid service on the defendant under any of the provisions of the CPC. As has been rightly contented by the learned counsel for the defendant-appellant, the conditions precedent for applicability of Rule 15 of Order 5 were non-existent. As has been rightly contented by the learned counsel for the defendant-appellant, the conditions precedent for applicability of Rule 15 of Order 5 were non-existent. In that view of the matter, I am of the opinion that there was no valid service of the summons on the defendant and the learned trial Court was not justified in rejecting the application under Order 9 Rule 13 for setting aside the ex parte decree on the ground that the service on the son of the defendant amounted | to valid service on the defendant himself. The next submission of Mr. Choudhury, learned counsel for the respondents is that, in view of the second proviso to Order 9 Rule 13, the ex parte decree should not be set aside. I have considered the submission. The proviso applies only in a case where the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. In such a case, it is provided that an ex parte decree ought not be set aside only on the ground that there has been an irregularity in the service of summons. The present case is not one of the types which may fall within the aforesaid proviso. Here the specific case of the appellant is that he was not aware of the filing of the suit or fixing of ex parte hearing thereof. It is not a case of irregularity. It is a case of non-service. In view of the aforesaid discussion, I am of opinion that the learned Assistant District Judge, Barpeta was not justified in rejecting the prayer of the appellant- defendant for setting aside the ex parte decree. The impugned order dated 18. 3. 83 and the ex parte judgment and decree passed in Money Suit No. 13 of 1982 are, therefore, set aside. As the case is a very old one, the parties and directed to appear before the learned Assistant District Judge, Barpeta on 3rd December, 1990 to obtain necessary orders. The learned Assistant District Judge shall dispose of the case as expeditiously as possible. In the result, the appeal is allowed. No order as to cost.