JUDGMENT 1. - Since common controversy is involved in these two appeals as to the relief as prayed for setting aside ex-parte decrees dated 7.9.1994 in Civil Suit Nos. 19/93 ad 20/93 which was declined by the Additional District Judge No.2, Jaipur City, Jaipur in respect of two applications under Order 9 Rule 13 Civil Procedure Code filed by Mukesh Sharma and Prateek Sharma, these appeals have been heard jointly and are being decided by this common judgment. 2. The facts leading to these appeals are briefly stated as under:- Civil Misc. Appeal No.364/98 pertains to Civil Suit No.19/93. This suit was filed by plaintiff Vimal Chand Agrawal (respondent) against defendant Prateek Sharma (appellant) for specific performance of an agreement to sale executed on 2.2.1990. Civil Misc. Appeal No. 366/98 pertains to Civil Suit No.20/93 filed by plaintiff Manoj Agrawal (respondent) against defendant Mukesh Sharma (appellant) for specific performance of an agreement to sale executed on 3.2.1990. 3. Initially, both the suits were filed before the District Judge, Jaipur City, wherefrom they were transferred to the Court of Additional District Judge No.2, Jaipur City. On 3.3.93 the Addl. Distt. Judge No.2, Jaipur City ordered to issue notice in each of aforesaid suits to the defendants and accordingly notices were issued to them for their appearance on 29.4.93. These notices were served on and received by Kailash Sharma, Advocate, father of Prateek Sharma and brother of Mukesh Sharma on 29.3.93 but on 29.4.93 no one appeared thereby the orders to proceed ex - parte was passed in the suits. Ultimately, the suits proceeded ex - parte and were decreed on 7.9.94. On 7.10.94 the defendants appellants moved an application under Order 9 Rule 13 Civil Procedure Code, in each of the aforesaid two suits for setting aside ex - parte decrees before the trial Court. Reply to these applications were filed by the plaintiffs. However, after hearing the parties the trial Court by its orders dated 17.11.97 dismissed defendants' aforesaid applications declining to set aside ex - parte decrees. Hence, these Misc. Appeals have been preferred against aforesaid orders. 4. Shri Mohd. Reply to these applications were filed by the plaintiffs. However, after hearing the parties the trial Court by its orders dated 17.11.97 dismissed defendants' aforesaid applications declining to set aside ex - parte decrees. Hence, these Misc. Appeals have been preferred against aforesaid orders. 4. Shri Mohd. Iqbal Khan, learned counsel for the appellants (defendants) challenging aforesaid orders contended that service of notices was not made effective as per requirement of Order 5 Rule 15 Civil Procedure Code since the service of notices on father/brother of the defendants could not be deemed to be service of the same on the defendants, themselves. Shri Khan then contended that the limitation to file applications for setting aside ex parte decrees runs from the date of knowledge. He cited the decisions in--(1) Suresh Kumar Vs. Godaveri AIR 1992 Madhya Pradesh 205 , (2) Tripura Modern Bank Vs. Bansen & Co. AIR 1992 Calcutta 781 , (3) Gauhati University Vs. Niharlal ( 1995(6) SCC 731 ) , and (4) Ganpatlal Vs. Rajeshwari Agrawal ( 1997(1) WLC 640 ). 5. Lastly, Shri Khan contended that the suits which have been decreed ex parte were instituted with the prayer to enforce and for specific performance of agreements which were conditional inasmuch as, those agreements were executed by the defendants in whose favour the title of the suit property had not been passed as on the date when the said agreements in question were executed between the parties because sale deeds of the suit plots were executed by real owners of the plot in favour of third party on 20.3.90 and 10.10.90 respectively. In this regard, Shri Khan placed reliance upon the decisions in: (1) Dadarao Vs. Ramarao ( AIR 1999 SCW 4818 ) and (2) H.H. Acharya Swami Ganesh Dassji Vs. Sitaram Thapar (1996 DNJ (SC) 298) . 6. In this regard, Shri Khan placed reliance upon the decisions in: (1) Dadarao Vs. Ramarao ( AIR 1999 SCW 4818 ) and (2) H.H. Acharya Swami Ganesh Dassji Vs. Sitaram Thapar (1996 DNJ (SC) 298) . 6. Shri Gopi Chand Garg and Shri Alok Garg, learned counsel for the plaintiffs contended that in reply to the applications under Order 9 Rule 13 Civil Procedure Code, it had been stated, that as would be apparent from the summons received by Kailash Sharma, Advocate (father and brother of the defendants, Prateek and Mukesh Sharma, respectively), the summons had been issued by the Court of Additional District Judge No.2, Jaipur City, Jaipur under seal and signature of the Court and, therefore, it is per se wrong on the part of the defendants to say that they were not having knowledge as to before which of the Courts proceedings were pending when the orders to proceed ex parte (impugned) in these appeals were passed. Shri Garg further contended that despite an opportunity to lead evidence being given to the defendants in support of their contentions in applications under Order 9 Rule 13 Civil Procedure Code, they refused to lead any evidence. Shri Garg also contended that the summons were served admittedly on father/brother of the defendants on 29.3.93 to appear in the aforesaid Court on 29.4.93 but since then no effort was made by the said defendants till the decrees were passed on 7.9.94, which shows that They deliberately did not make any effort to get orders of ex parte proceedings set aside rather they were interested only to delay the matter specially when there was no irregularlity in service of the summons in question. Lastly, Shri Garg contended that applications in question were dismissed on 17.11.97 by the trial Court but these appeals were filed before this Court on or about March 1998 where after also the appellants took no steps through their learned counsel to get the appeals listed and heard by this Court and rather the appeals were lingered on with a view to gain time till 7.5.99 so as to forestall and delay further proceedings pending before the trial Court. 7. Shri Garg cited the decisions in (1) Vijay Kumar Vs. Kala Bai ( 1995(6) SCC 148 ) ; (2) M/s Anand Thailee Bhandar Vs. Ganganagar Sugar Mills (1989(2) RLR 94) , (3) Premchand Vs. 7. Shri Garg cited the decisions in (1) Vijay Kumar Vs. Kala Bai ( 1995(6) SCC 148 ) ; (2) M/s Anand Thailee Bhandar Vs. Ganganagar Sugar Mills (1989(2) RLR 94) , (3) Premchand Vs. Madanlal (1993(2) RLR 412=1994(1) RLW 427) , (4) Om prakash Vs. Lala (1995 DNJ Raj. 567) . 8. I have heard learned counsel for the parties, and perused the impugned orders of the trial Court whereby it had declined to set aside ex parte decrees on the defendants' applications moved under Order 9 Rule 13 Civil Procedure Code. I have also considered the rival contentions of the parties. It is not disputed at the bar and rather it is an admitted position that summons issued to the defendants by the ADJ No.2, Jaipur City, Jaipur for appearance on 29.4.93 were received on 29.3.93 by Shri Kailash Sharma, Advocate who undoubtedly is brother of Mukesh Sharma and father of Prateek Sharma. Mukesh and Prateek Sharma are defendant in Suit No.20/93 and 19/93 respectively. Applications under Order 9 Rule 13 Civil Procedure Code were moved through afore named advocate Shri Kailash Sharma before the trial Court on 7.10.94. No evidence was led by the defendants for reason best known to them. 9. Similarly, it is admitted case of the defendants in their applications that they had acquired knowledge on 7.9.94 that ex parte decree have been passed on that date. 10. By the impugned orders the trial Court concluded that though in summons in question name of the Court was shown as District Judge, Jaipur City but there was clear and specific seal of the Court of Addl. District Judge No.2, Jaipur City and, therefore, on this count it cannot be said that there was no sufficient service. Similarly, before the trial Court it has been admitted that recipient of the summons Shri Kailash Sharma was an advocate and hence the trial Court held that it cannot be said that there had been difficulty in locating the Court shown in the summons specially in view of the affixed seal thereon and signature of the Reader of the Court. I am in full agreement with the conclusions drawn by the trial Court. 11. I am in full agreement with the conclusions drawn by the trial Court. 11. The controversy raised by the defendants is as to whether the service of the summons in aforesaid suits for appearance on 29.4.93 cannot be deemed to be sufficient service on the defendants being violative of provisions under Order 5 Rule 12 and 15 Civil Procedure Code, thereby ex parte decrees deserve to be set aside ? 12. The short question involved in these appeals are as to whether the ex parte decrees deserve to be set aside in the circumstances of this case ? In order to consider this question, I would like to discuss the law laid down in the decisions cited at the bar. 13. In Suresh Kumar Vs. Godaveribai (supra), the Madhya Pradesh High Court held that in the absence of report of the process server that there was no likelihood of the defendant being found at the residence within a reasonable time, the service could not be made on adult member of the family and as such one of the ingredients for serving the summons on the father of the defendant being absent, it cannot be said that the provisions of Rule 15ORDER5 Civil Procedure Code were not complied with. It was a case as per report of the process server that as the defendant was not present when process server went to his house, he served the summon on his father who was residing with him, who although took the notice initially but after going through it refused to take the notice. As such the Court held that on refusal by father of the defendant to accept notice the procedure as provided under Rule 17ORDER5 Civil Procedure Code had to be adopted, which having not been complied with, summons were held to be not properly served. In the instant case, defendant's father and brother received the summons and hence it cannot be said that they had refused the service of summons. Thus the ratio of decision in aforesaid case does not render any held in advancing the case of the defendants. 14. Next case cited by Shri. Khan is Tripura Modern Ban Vs. Bansen & Co. In the instant case, defendant's father and brother received the summons and hence it cannot be said that they had refused the service of summons. Thus the ratio of decision in aforesaid case does not render any held in advancing the case of the defendants. 14. Next case cited by Shri. Khan is Tripura Modern Ban Vs. Bansen & Co. (supra), wherein the Calcutta High Court while interpreting Rule 15ORDER5 Civil Procedure Code for service on the adult male member of the family of the defendant residing with him, held that a service of this description can only be made in the circumstances:-(a) that the defendant must be absent from his residence, (b) that a mere absence of the defendant from his residence is not enough but the process server must be satisfied that there was no likelihood of his being found thereat within reasonable time and (c) that it is only if the aforesaid two circumstances are satisfied then service can be made on an adult male member belonging to the family of the defendant residing with him. The Court held that the first requisite is that the person upon whom service is made must be a male member belonging to the family of the defendant and secondly he must reside with the defendant. The Court also held that under Rule 5ORDER3 service on counsel of the defendant is deemed to be service on defendant himself and hence good service. It was a case where process server reported that the defendant was not present nor his authorised person living in the premises addressed in the notices, therefore he effected service by affixing a copy of summons, plaint to the outer door of his house. Thus, with due respect to the law laid down by the Calcutta High Court, the ratio of decision in Tripura Bank's case (supra) rendered in different facts and circumstances as compared to the factual matrix of the instant case and hence it does not help in advancing the defendant's case for setting aside ex parte decree. 15. Now, I refer to the ratio of decisions cited by Shri Garg. In Vijay Kumar Vs. 15. Now, I refer to the ratio of decisions cited by Shri Garg. In Vijay Kumar Vs. Kamlabai (supra) the apex Court while dealing with application for setting aside ex parte eviction order held that no material was placed by appellants showing that they were diligently prosecuting the suit and in view of the categorical finding of the trial Court that the appellants being in actual possession of the suit property were intending to prolong the matter and that there was no bona fide reason or genuineness for their non-appearance, the High Court declined to interfere in that finding in exercise of its discretion under Section 115 Civil Procedure Code, as it was not held to be appropriate case for interference under Article 136 of the Constitution of India. In M/s Anand Thailee Bhandar's case (supra) this Court held that ex parte decree cannot be set aside merely on the ground that there was irregularity in service of summons. In Prem Chand Vs. Madanlal (supra) summons were not accompanied by a copy of the plaint, so ex parte decree was sought to be set aside but this Court held that 'eon- accompanying of plaint does not vitiate the service of summon in the eye of law because summons were served in time and the defendant had ample opportunity to approach the Court asking for its copy and further held that irregularity cannot be used a ground for setting aside the ex parte decree. 16. In Om prakash Vs. Lala (supra), this Court held that knowledge of the suit, its date and name of the Court are sufficient for the defendant to appear even if the copy of the plaint is not made available at the time of service and in the circumstances the defendant avoided the suit hearing. Hence, ex parte decree was upheld and appeal was rejected with cost of Rs. 2,000/-. 17. Applying the ratio of decisions, referred to above to the factual matrix of the instant appeal, I am of the considered opinion that merely because the process server did not report on the summons that there was no likelihood of the defendant being found at his residence within reasonable time, would itself not be a ground to draw the inference so as to rule out the presumption of knowledge of the same as the service was effected on adult member of the family. In my view, non-mention of the satisfaction of one of the ingredients/ circumstances as set out in Order 5 Rule 15 Civil Procedure Code by the process server on the summons, or one of the ingredients for serving the summons on the defendant's family member being absent, would be a mere irregularity in service of summons inasmuch as it would not be a ground for setting aside ex parte decree. Second proviso to Rule 13ORDER9 Civil Procedure Code provides 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. Even under Rule 5ORDER3 Civil Procedure Code service on pleader/counsel of the defendant is good/sufficient service. 18. In the peculiar circumstances of the instant case, admittedly summons were received by Shri Kailash Sharma who is father of Prateek Sharma and brother of Manoj Sharma, while Shri Kailash Sharma is an advocate by profession inasmuch as, on 7.9.94 he filed his Vakalatnama alongwith application for stay of proceedings, inspection of records and he also moved on behalf of aforenamed defendants not only the applications which were filed one after the other but also application for setting aside ex parte decree. Thus, it must be held that he is and has been not only male family member but also counsel of the defendants. Admittedly the defendants failed to produce relevant material to the satisfaction of trial court that they had no notice of the date of hearing and rather, they had full knowledge through their advocate Shri Kailash Sharma who had received the summons on 29.3.93 to appear on 29.4.93. Being an advocate and family member of the defendant practising as lawyer in the Civil Courts, it could not have been difficult for him to search the concerned Court where suits were pending against his brother and son (defendants) especially when the summons received by him, as held by the trial Court, bore clear seal of the Court of ADJ No.2, Jaipur City and he could have appeared on 29.4.93 as per summons and pleaded,on behalf of the defendants, as is now being done by him for setting aside ex parte decree. Keeping in view the conduct of Kailash Sharma and the defendants which smack of deliberate inaction for not prosecuting the suits diligently despite the knowledge on receipt of summons as to the pendency of suits, hence they have no case for setting aside ex parte decree. 19. Be that as it may, no efforts were made by Shri Kailash Sharma, his son and brother also and they kept silence watching the proceedings behind the veil right from the date of receipt of the summons i.e. 29.3.93 till ex parte decree was passed on 7.9.94. They filed application for setting aside ex parte decree on 7.10.94 with the plea that they derived the knowledge as to the ex parte decree dated 7.9.94 on the date itself and, therefore, the limitation should run from the date of knowledge and not prior to it. 20. Mr. Khan relied upon the decision in Gauhati University Vs. Niharlal (supra), wherein summons for appearance on 28.5.90 in the suit were served on the University on 29.5.90 and thereafter suit was adjourned to 19.7.90 but since the date was not communicated to the University as envisaged in Rule 6(c) of Order 9, Civil Procedure Code, the Apex Court held that summons was not duly served and the limitation began to run only when the University had knowledge of the ex parte decree and since the application for setting aside the ex parte decree was filed within 30 days from the date of knowledge, the application was held as not barred by limitation and accordingly the ex parte decree was set aside. I have examined the ratio of decision in Gauhati University's case (supra). It was a case where when the summons though served but the defendant did not have due time, so the Apex Court held that clause (c) of Rule 6ORDER9, Civil Procedure Code will apply as it envisages further notices to be given, fixing a future date and the court shall direct notice of such date to be given to the defendant and in that case admittedly no such step had been taken, ex parte decree was set aside. 21. In the instant case; Shri Kailash Sharma received summons admittedly on 29.3.93 for appearance of his son and brother on 29.4.93 which means the defendant did have sufficient time of atleast one month. 21. In the instant case; Shri Kailash Sharma received summons admittedly on 29.3.93 for appearance of his son and brother on 29.4.93 which means the defendant did have sufficient time of atleast one month. The case of University (supra) was of category of summons served but not in due time, whereas the present case is category of summons duly served. In the case of summons duly served, in my view, the limitation would run from the date of the decree and where the summons or notice was not duly served, the limitation would run from the date the applicant had knowledge of the decree, as held in Gauhati University's case (supra). Thus, the ratio of decision in Gauhati University's case (supra) does not help the defendants in advancing their case here. 22. Next decision cited by Mr. Khan is of this Court in Ganpatlal Vs. Rajeshwari (supra). It was a decision totally based on and following the decision of the Apex Court in Gauhati University's case (supra), which I have discussed above. The ratio of decision in Ganpatlal's case (supra) being distinguishable is not attracted to the present case. 23. As discussed above, in the instant case, the defendants and their counsel Shri Kailash Sharma who received the summons though as male member of the family, well within time much prior to the date of appearance, were not diligent in prosecuting the case and they had deliberately not taken any immediate steps for setting aside ex parte decree within 30 days from the date of appearance, i.e. 29.4.93 when the order to proceed ex parte was passed. They kept silence throughout watching behind the veil right from 29.4.93 to 7.9.94 when ex parte decree was passed, during which period suit proceeded ex parte in absence of the defendant in both the suits despite summons having been duly served on Kailash Sharma who is father and brother respectively of the defendant besides an advocate practising in the Courts. They have also failed to explain and establish sufficient cause for their non-appearance during the ex parte proceedings till decrees were passed. 24. In my considered view, the impugned order is a reasoned order for holding the service of the summons as sufficient. There is neither any infirmity, illegality or any impropriety in the same. They have also failed to explain and establish sufficient cause for their non-appearance during the ex parte proceedings till decrees were passed. 24. In my considered view, the impugned order is a reasoned order for holding the service of the summons as sufficient. There is neither any infirmity, illegality or any impropriety in the same. Hence, it cannot be said that the defendants were not served and they were ignorant or were not aware of the proceedings against them before the trial Court. The defendants were not at all deliberately diligent in prosecuting the suit rather were interested in protracting the matter by taking somersault by playing game of hide and seek and watching the proceedings behind the veil. This is a case where the impugned agreements were executed in February 1990, specific performance of which had been sought by filing the suit in the year 1993 and the orders to proceed ex parte were passed on 29.4.93. Thereupon the proceedings continued resulting in issuing ex parte decrees on 7.9.94. The applications for setting aside ex parte decrees were dismissed on 17.11.1997 against which appeals were filed in March, 1998 and these appeals were pursued by the appellants for being decided in the year 2000. This shows how the defendants were and are diligent in prosecuting the matter, the-benefit of which cannot be extended to them for deliberate lapse on their part. Moreover, in pursuance of the impugned decrees the plaintiff/decree holders have already deposited entire requisite balance amount towards sale consideration under agreements to sale before the trial Court on 24.2.95, itself, as is evident from the challans, photostat copy of which has been produced during course of the hearing. 25. As a result of the above discussion, these two misc. appeal Nos. 364198 and 366/98 fail and are hereby dismissed. The impugned judgment/orders dated 17.11.97 passed by the Additional District Judge No.2, Jaipur City rejecting the applications of the defendant under Order 9 Rule 13 Civil Procedure Code for setting aside ex-parte decrees dated 4.9.1994 in civil suit Nos. 19/93 and 20/93, are upheld. No order as to costs.Appeal Dismissed. *******