ORDER R.S. Garg, J. 1. Being aggrieved by the order dated 24-11-1995 passed in Misc. Appeal No. 12/94 by the learned Xllth Additional District Judge, Indore, confirming the order dated 4-3-1994 passed in MJC No. 62/87 by the learned Civil Judge, Class-I, Indore, dismissing the applicants application filed under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte judgment and decree delivered in Civil Suit No. 5-B/1986 (though the suit is Suit No. 5-B/86 but at many places it has been referred as 5-B of 1985) (Triyoginarayan v. Daulatdas) on 28-7-1986. 2. The applicants moved an application under Order 9, Rule 13, Civil Procedure Code inter alia pleading that they were not served in accordance with law, therefore, the ex parte decree passed against their interest, deserved to be set aside. In the revision memo, so also in the application for setting aside the ex parte decree, reference to earlier litigation has been made, but to my mind consideration of the earlier matters lodged by the parties is not relevant. 3. The applicants submitted before the Court that as they were not served properly in accordance with law of the service of summons of C. S. No. 5-B/85 (86), the ex parte decree deserved to be set aside. The application was vehemently opposed and it was contended that Daulatdas s/o Mahant Kunjbiharidas, one of the defendant in the original suit was served in accordance with law and as he was representing all concerned, the Bailiff supplied him the copies to effect service and as such each of the defendant was properly served, therefore, the plea raised by the defendants that they were not served in accordance with law could not be accepted and the application deserved dismissal. 4. As the parties joined issue, the learned trial Court recorded evidence of the parties. 5. The applicants examined applicant No. 4 Laxmandas and in support of his statements also examined Bhawani Singh who contended that he had informed Laxmandas and others that Nazir had come to the suit property for effecting the auction. The non-applicant examined himself and stated on oath that summons were legally served. 6. 5. The applicants examined applicant No. 4 Laxmandas and in support of his statements also examined Bhawani Singh who contended that he had informed Laxmandas and others that Nazir had come to the suit property for effecting the auction. The non-applicant examined himself and stated on oath that summons were legally served. 6. The learned trial Court, after hearing the parties, held that as the defendants were served in accordance with law, their application filed under Order 9, Rule 13, Civil Procedure Code was barred by limitation and they were not entitled to any relief from the Court. The trial Court also held that as the application was barred by limitation, it was not required to decide the matter on merits. Being dissatisfied by the order passed by the learned trial Court, the applicants took up the matter in appeal. The learned appellate Court while endorsing the findings of the trial Court regarding limitation also examined the merits of the matter and held that the defendants/applicants could not make out a case for setting aside the ex parte decree. Being dissatisfied by the orders passed by the appellate Court, the applicants have preferred this revision petition. 7. Shri T. N. Singh, learned counsel for the applicants contends that the copy of the summons available in the Court records would clearly show that the summons were not served in accordance with law, and, therefore, the Court was unjustified in holding that the application was barred by limitation and was also wrong in deciding on merits against the applicants. Referring to certain provisions of Order 5, Shri Singh contended that Bailiff's report regarding the service was incomplete, it was not in accordance with the rules and as the Bailiff did not submit his affidavit in accordance with the form appended in Schedule I, Appendix B, there can be no presumption of the valid service. Contending otherwise, Shri Barania, learned counsel for the non-applicant submits that the service was legally effected, Daulatdas who was served was virtually representing all the applicants/defendants as he was Karta of the family. The Bailiff was justified in serving the summons of the suit upon him and the Court below was not wrong in holding that the summons were properly served. The Bailiff was justified in serving the summons of the suit upon him and the Court below was not wrong in holding that the summons were properly served. Referring to second proviso of Rule 13 of Order 9, Civil Procedure Code, it was contended that if the defendant knew about the date of hearing or had sufficient opportunity to reach the Court, then in such a case, the Court shall not set aside the ex parte decree. 8. The original records of C. S. No. 5-B/85 (86) were requisitioned by this Court for seeing the original summons. 9. In all six summons were issued in Suit No. 5-B of 1985 (86). The summons bear the numbers as 715 to 720. Summons No. 720 issued to Daulatdas has an endorsement on the back of it. The endorsement reads. ^^ekSds ij nkSyrnkl us tkfgj fd;k fd esjk gh mQZ uke ckcw gS-** Under this endorsement the said Babu has signed. There is yet one more endorsement on this summons. That is in the handwriting of the Bailiff. It reads ^^eSa lR; izfrKk ij dFku djrk gw fd fo- i- foi{kh i{kdkj ckcw mQZ nkSyrjke dks nkos dh udy nsdj lgh yh x;hA lEeul okn rkehy is'kA** Below this endorsement, signatures of somebody are affixed. Summons No. 717 has only one endorsement on the back of it which is made by the Bailiff. Similarly, the said endorsement regarding supplying of the copy of the plaint is made by the Bailiff on summons Nos. 715, 716, 718 and 719. It is not in dispute before me that the Bailiff did not know Daulatdas or Daulatram or Babu personally. It is also not in dispute before me that the Bailiff did not ask anybody to identify Daulatdas @ Babu. It is also not in dispute before me that somebody who was known to the Bailiff had not identified the said Daulatdas @ Babu. The summons if read in its true perspective would lead to the only irresistible conclusion that somebody appeared on the spot, told to the Bailiff that he was Babu @ Daulatram and the Bailiff being pleased by the appearance of the said person, served the summons upon him and discharged his liability in such a 'legal manner'. 10. The requirement under the law is contained under Rules 15, 16, 17 and 18 of Order 5. 10. The requirement under the law is contained under Rules 15, 16, 17 and 18 of Order 5. Order 5, Rule 15 reads as under :- "Where service may be on an adult member of defendant's family :- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected 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 the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him." A perusal of Rule 15 would show that where the defendant is absent from his residence, when the summons are sought to be served and there is no likelihood of his being found at the residence, within a reasonable time the summons can be served on an adult member of the family. The requirement of the law is that 'there is no likelihood of his being found within a reasonable time at his residence'. The endorsement on the summons does not read that the Bailiff at any point of time ever made any enquiry from anybody as to whether the defendant was available or not, whether there was any likelihood of his availability within a reasonable time or whether after some time, the said defendant could be served. When the law provides that the summons are to be served in a particular manner, those have to be served in accordance with law. The Bailiff's report even does not say that defendant sought to be served was not available at the residence. The report merely says that Daulatdas informed him that he was also known as Babu. Under Rule 15, an adult member of the family can only be served if the Bailiff is satisfied that person who is sought to be served is not available and there is no likelihood of his availability in a reasonable time. Rule 16 relates to signatures on the acknowledgement. It reads as under :-" "Person served to sign acknowledgement. Under Rule 15, an adult member of the family can only be served if the Bailiff is satisfied that person who is sought to be served is not available and there is no likelihood of his availability in a reasonable time. Rule 16 relates to signatures on the acknowledgement. It reads as under :-" "Person served to sign acknowledgement. - Where the serving officer delivers or tenders a copy of the summons to the defendant personally or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons." The serving officer under the law is duty bound to obtain the signatures of the person to whom the copy is so delivered or tendered. The endorsement does not read that. There is not even a single word in the endorsement in the handwriting of Babu that the summons were served with the copy of the plaint. The summons show signatures of Babu. Even an endorsement is not made by the Bailiff above the signatures of the said defendant that he had received the copy of the plaint, which accompanied the summons. Below the signature of the defendant, the Bailiff has made an endorsement that he had supplied the copies. The requirement of the law is otherwise. The person receiving the summons has to acknowledge the service of the summons with copy of the plaint. It is not for the Bailiff to say that he served the copies. 11. Rule 17 relates to procedure when defendant refuses to accept the service or can't be found. In this judgment, we are not required to consider the provisions of Rule 17 or its effect. 12. Rule 18 of Order 5 reads as under :- "Endorsement of time and manner of service. 11. Rule 17 relates to procedure when defendant refuses to accept the service or can't be found. In this judgment, we are not required to consider the provisions of Rule 17 or its effect. 12. Rule 18 of Order 5 reads as under :- "Endorsement of time and manner of service. - The serving officer shall, in all cases in which the summons has been served under Rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons." Rule 18 mandates that the serving officer shall in all cases where the summons are served in accordance with Rule 16, has to state on the summons the time when and the manner in which the summons were served. The manner is certainly indicated on the back of the summons, but the time when it was served is not to be found on the back of the summons. Non-mention of the time on the back of the summons may not be fatal because the Court is only required to consider as to, in fact the summons were served or not and if were served whether the same were served in accordance with law or not. 13. Rule 18 further provides that the serving officer shall state the manner in which the summons were served, the name and address of the person who identified the person served and witnessed the delivery or tender of the summons. As observed above, it is uncontrovertible that no person identified Daulatdas @ Babu. If Daulatdas was not known to the Bailiff, then he could not have served summons meant for Daulatram what of other defendants. The Bailiff report nowhere says that the Bailiff knew Daulatram @ Daulatdas from before or also had the knowledge that Daulatdas had a nick name as Babu. In absence of such a statement of the serving officer, it can't be held that the person served was in fact Daulatdas or the person who had signed as Babu was in fact a party to the suit. The endorsement made on the back of the summons would also show that none had identified Babu or Daulatdas to the serving officer. The endorsement made on the back of the summons would also show that none had identified Babu or Daulatdas to the serving officer. The mandatory requirement of Rule 18 is that the serving officer shall disclose the name and address of the person identifying the person served and witnessing the delivery or tender of the summons. Rule 18, though procedural, but is mandatory in nature. It is to avoid the mischief which may be caused to an innocent party. The law provides that if the Bailiff does not know the person to be served, then he is duty bound to seek assistance of somebody for identification of the person served or person sought to be served. To this, it can also be added that the person identifying the defendant must be known to the Bailiff or the Bailiff must record that he believed that the person who identified the person served was in fact identifying the right person. If the Bailiff just on a statement made by somebody hands over him the summons, it can't be held that the provisions of Rule 18 of Order 5 were complied with in accordance with law. When the law provides that a thing is to be done in a particular manner, it must be so done or not at all. This is a case where reports on the back of summons clearly show not only the violation, but complete assassination of the service rules. 14. Placing reliance upon the second proviso to Rule 13 of Order 9, Shri Barania contended that the defendant had sufficient knowledge and as such because of the irregularity in the service of summons, he was not entitled to get the ex parte decree set aside. The argument loses the material legal provisions. Rule 13 of Order 9 reads as under :- "Setting aside decree ex parte against defendant. The argument loses the material legal provisions. Rule 13 of Order 9 reads as under :- "Setting aside decree ex parte against defendant. - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it can't be set aside as against all or any of the other defendants also : (Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.) 15. The second proviso reads that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. The Court can refuse to set aside a decree if it is convinced that there was some irregularity in the service of the summons and the defendant had sufficient notice for his appearance. In the instant case, the Court below has not considered this aspect in its true legal position. In the opinion of this Court, it was not a case of irregular service of summons, it was a case of illegality. Nobody knows that the person who was served with the notice was in fact Daulatdas or not. The plaintiff/non-applicant was required to establish in the Court that summons were served on the party to the original suit. In the opinion of this Court, it was not a case of irregular service of summons, it was a case of illegality. Nobody knows that the person who was served with the notice was in fact Daulatdas or not. The plaintiff/non-applicant was required to establish in the Court that summons were served on the party to the original suit. If the Plaintiff satisfied the judicial conscience of the Court that the summons were in fact served in accordance with law, but certain directive provisions were not observed, only in such a case, the Court may on being satisfied that the defendant had sufficient time to approach the Court on the date of hearing, can refuse to set aside the ex parte decree. In the instant case, the plaintiff/non-applicant nowhere states that the person served was in fact Daulatdas or he himself was present at the time when the summons were served. As the plaintiff was relying upon the endorsement made on the back of the summons, in the opinion of this Court, he was duty bound to examine the Bailiff to prove the tender of summons, service of summons and to state that it was in accordance with law. The plaintiff having failed to prove all these, can't be permitted to take advantage of the second proviso of Rule 13 of Order 9. 16. It was lastly contended that the matter be sent back to the trial Court giving an opportunity to the plaintiff to examine the Bailiff. In my opinion, such an opportunity can't be given and is not required to be given to the plaintiff. It could not be disputed before me that the trial Court granted fullest opportunity to the plaintiff/non-applicant to lead evidence. If after examining his own self the plaintiff was satisfied and closed his right, at the revisional stage he can't be permitted to make out a capital of the fact that he was under impression that the summons were legally served. 17. The Courts below were not justified in rejecting the applicant's application filed under Order 9, Rule 13, Civil Procedure Code. The Courts were also wrong in holding that the applications were barred by limitation. The facts clearly show that Bhawani Singh had informed Laxmandas that Nazir had come to the suit property for its auction. 17. The Courts below were not justified in rejecting the applicant's application filed under Order 9, Rule 13, Civil Procedure Code. The Courts were also wrong in holding that the applications were barred by limitation. The facts clearly show that Bhawani Singh had informed Laxmandas that Nazir had come to the suit property for its auction. Under Article 123 of Indian Limitation Act, 1963, the date of the knowledge would be the date for commencement of the limitation in a case where the defendant is not served or is not served in accordance with law. The application was certainly within limitation. As I have already held that there was no legal service of summons, the Court in Civil Suit No. 5-B/85 (86) had no jurisdiction to proceed with the trial and could not have granted the judgment and decree in favour of the plaintiff. 18. The revision deserves to and is accordingly allowed. The Judgment and decree passed in Civil Suit No. 5-B/1985 (86) of the Court of Vth Civil Judge, Class-I, Indore, dated 28-7-1986 is set aside. As the defendants now appear before this Court, they are not required to be resummoned. Parties shall appear before the trial Court (Vth Civil Judge, Class-I, Indore) on 14th July, 1997 and shall take instructions from the trial Court for further proceedings. The applicants shall be entitled to their cost. Counsel fee quantified to Rs. 1,000/-. 19. Before parting with the case, I feel obliged to write few words. A Court before proceeding ex parte against defendant, must cautiously see the summons, the report on the summons and should not blindly go-by the formal words that the defendant was served, but was absent. The Court must not forget that when it proceeds ex parte against a party, it virtually denies a right of hearing to that party under the legal presumption that the party despite service of the summons and having the knowledge of the proceedings has chosen to remain absent. When the ex parte orders are passed in the cases, those are in fact orders in terrorem. It grants some decree in favour of a person against the rights of the another man who is not present before the Court. When the ex parte orders are passed in the cases, those are in fact orders in terrorem. It grants some decree in favour of a person against the rights of the another man who is not present before the Court. The Court shall always be justified in proceedings ex parte provided it is convinced that the defendant or the opposite party despite service of the summons and knowledge of the pendency of the proceedings had chosen to remain absent, but before proceeding ex parte, the Court must advert itself to the legal requirements. Order 5 in itself is a complete Code, regarding service of the summons. When the legislature provides the strict checks regarding service of the summons on the opposite party, the Courts should not cursorily pass the ex parte orders or proceed ex parte. It is the bounden duty of every Court to verify personally that the summons were served in accordance with law and the party despite service of the summons had chosen to remain absent. In a case where the judicial conscience of the Court is satisfied that the summons were served in accordance with law, then only it should proceed ex parte. The provisions of Order 5, Rules 15, 16 and 18 are in fact a statutory check to avoid the mischief, which may be prayed by an unscrupulous plaintiff joining hands with a notorious Bailiff. It is expected of every Court that it shall consider the provisions of Order 5, before passing an order under Order 9.