JUDGMENT PER ARUN KUMAR GOEL, J (ORAL) 1. This appeal is directed against the order of learned District Judge, Jammu dated 15th April, 1995 passed in File No.: 26/Misc.whereby application under Order 9, Rule 13 of the CPC filed by the appellant has been dismissed. 2. Brief facts of the case giving rise to this appeal are that a suit for recovery of Rs. 53,190.20 with pendentelite interest and costs was filed in the Court of learned District Judge at Jammu. Defendants were ordered to be served with summons alongwith a copy of the plaint. As per record of the trial Court when summon alongwith plaint was offered by the Process Server, Girdhari Lal to appellant no. 2, Bishamber Lal Jain, as per report of the former he refused to accept the summons as also to sign the same. Matter came up before the trial Court on 3rd August. 1993 when it was ordered that the statement of Process Server be recorded. Thereafter record of the trial Court further shows that the appellants were proceeded exparte on 10th August. 1993. 3. In the aforesaid background after recording exparte evidence on behalf of respondent/plaintiff trial Court passed exparte decree. Further case of the appellants was that they were not served with any notice nor the Process Server presented any summons to appellant no. 2, so there was no occasion of his having refused to accept the same. Appellants also allege that they came to know for the first time regarding there having been passed by decree against them when the decree was being executed and court officials accompanied by police came to effect attachment at the shop of appellant no. 2. Thereafter he having approached his counsel and then came to know about the exparte decree having been obtained by the respondent. 14th and 15th August, 1994 were holidays, therefore they applied for the copy of judgment and decree on 16th August, 1994; it was made available to them on 17th August, 1994 and application for setting aside exparte decree was filed on 19th August, 1994. Trial court put the respondent to notice on receipt of this application, thereafter recorded evidence on behalf of parties and has finally rejected the application, hence this appeal under Order 43 of the Code of Civil Procedure. It may be noted in this context that appellant no. Trial court put the respondent to notice on receipt of this application, thereafter recorded evidence on behalf of parties and has finally rejected the application, hence this appeal under Order 43 of the Code of Civil Procedure. It may be noted in this context that appellant no. 2, Bishamber Lal Jain had appeared on his own witness, whereas respondent examined Girdhari Lal, Process Server as a witness on his behalf, besides appearing himself in the witness box. Anil Kumar was produced as another witness in whose presence appellant no. 2 is stated to have refused to accept the notice. This man had witnessed the report of refusal made by Girdhari Lal, Process Server during the course of trial. 4. Learned counsel appearing for appellants has made two fold prayer namely that at no point of time her clients ever refused to accept the process, which in fact was never presented to appellant no. 2; and alternatively even if it be assumed for the sake of argument without being conceded, after refusal as claimed by the Process Server it was his duty in law under Order 5, Rule 17 of the CPC to have pasted the notice alongwith copy of the plaint at the address as was available with him. As such it was prayed that the learned trial Court had fallen into error by dismissing the application in question and the appeal deserves to be allowed. Both these pleas have been controverted by the learned counsel appearing for respondent. He urged that his client may be an interested person in the success of the case but there was no occasion for the Process Server to have shown any favour/disfavour to any of the parties. According to learned counsel for the respondent statement of the Process Server was recorded by the trial Court before proceeding exparte, who has also pledged his oath when he appeared before the trial Court during the course of proceedings under Order 9. Rule 13 CPC. 5. When a reference is made to the statements of appellant no. 2, Bishamber Lal Jain recorded by the trial Court, it neither inspires confidence nor his worthy of any credence, therefore it cannot be relied upon to hold that summon was not presented to him and or he did not refuse the same. Rule 13 CPC. 5. When a reference is made to the statements of appellant no. 2, Bishamber Lal Jain recorded by the trial Court, it neither inspires confidence nor his worthy of any credence, therefore it cannot be relied upon to hold that summon was not presented to him and or he did not refuse the same. In this behalf it may also be noted that nothing has been attributed to Girdhari Lal, Process Server so as to warrant that he made the report for some extraneous considerations and or he did not present the summon alongwith plaint to appellant no. 2. This is one aspect of the matter. On the other hand there is another independent witness Anil Kumar, who has witnessed the refusal of notice by appellant no. 2 alongwith another person as is evident from the report of Process Server. Nothing has been directed in the cross-examination of this witness so as to show that he was either not present at that time or that he has some other reasons to give evidence in support of the claim of respondent. That being so the first contention urged in support of this appeal has no merit and is hereby rejected. 6. So far other contention urged on behalf of the appellant is concerned, as per provisions of Order 5, Rule 17 in the ordinary course of things Process Server was required to have affixed the summon alongwith copy of the plaint after appellant no. 2 refused to acknowledge the receipt of the same. But then the question that needs examination is whether it is an illegality which goes to the root of the case or whether it is simply an irregularity and thus curable. The fate of this appeal also hinges on decision of this aspect of the case. 7. The purpose of issuing summons under Order 5 of the CPC is to enable a litigant to know that a Us is pending against him before a particular court, for a particular date under a particular parties name. In case there was no other discrepancy in the issuance of summons by the court, it is expected that the litigant would come to court and would copy make a grievance in that behalf about non-receipt of plaint copy. 8. In case there was no other discrepancy in the issuance of summons by the court, it is expected that the litigant would come to court and would copy make a grievance in that behalf about non-receipt of plaint copy. 8. After the amendment of Code of Civil Procedure vide State Act No: XI of 1983 which came into force with effect from 15th August, 1983 Second Proviso was added to Rule 13 of Order 9 CPC, which is the following terms: Provided further that no Court shall set aside a decree passed exparte 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 plaintiffs claims." 9. This is in consonance with what has been observed hereinabove. In the light of aforesaid legal provision, conclusion arrived at by the trial court for non-pasting of summons as well as plaint under Order 5, Rule 17 is merely an irregularity and not illegality which may warrant for interference in application under Order 9, Rule 13 that was filed by the appellant, is just and calls for no interference. 10. This matter need not detain us any further in the face of a recent decision of this Court reported in AIR 1994 J&K 12, Harbans Lal & others Vs. Charanjit Singh & others relevant observations wherefrom are extracted herein below: "10.Viewed thus, it remains to be seen on factual matrix in the present case whether non-compliance of requirements of Order V, Rule 17 is such as to render service invalid. There is no denial to the fact that defendants 2 and 3 refused to acknowledge summons when tendered to them and that process-server did not make any effort to affix summons on their house as required under Rule 17. But both the courts below have found it on fact that petitioners had the knowledge of claim against them and yet they had failed to appear before trial Court without any sufficient cause. So much so that they had failed to respond even after police aid was sought for implementation of interim stay order granted by trial Court as noticed by the Courts below. So much so that they had failed to respond even after police aid was sought for implementation of interim stay order granted by trial Court as noticed by the Courts below. I did not deem it necessary to repeat all those circumstances which led the courts below to conclude that petitioners had the knowledge of the suit and date of hearing. Nor do I see any reason or scope to disturb this finding of fact and to take a, contrary view. If that be so, which in fact it is, petitioners cannot be allowed to reap benefit of their negligent conduct of planned design by clinching to procedural wrangles. 11. To be fair to learned counsel for appellants it may be noted that she placed reliance on 1990 KLJ 26, "Krishan-Lal Vs. Mohinder Nath" and forcefully urged that since there was non-compliance with the provisions of Order 5 CPC, therefore the application filed by her clients under Order 9 Rule 12 was liable to be allowed and trial Court had fallen into error in that behalf. At the same time she forcefully stated that when there are two decisions of the same Court by coordinate bench, it is the later that needs to be followed. That being so 1990 KLJ 26 (supra) is not being followed while deciding this appeal. Another reason for not following this judgment is that the question whether non-affixation of summons once a party is stated to have refused to either accept the same or to acknowledge the receipt thereof, was not the question directly involved in the decision reported in 1990 KLJ 26 (supra); whereas this question was directly involved in the later decision of this Court reported in AIR 1994 J&K 12 (supra), wherein the factual circumstances were also identical to the present appeal. 12. No other point is urged. 13. As a result of aforesaid discussion there is no merit in this appeal which is accordingly dismissed. Stay order granted on 23rd May, 1995 in this appeal shall stand vacated forthwith. Trial Court is directed to proceed with the execution of decree in accordance with law with utmost expedition. Parties through their learned counsel are directed to appear before the trial Court on 29th February, 2000. Registry will ensure that the entire record of this case is sent to the trial Court so as to reach well before the date fixed.