S. N. SRIVASTAVA, J. ( 1 ) BY way of this writ petition, the ex parte decree dated 14. 9. 1983 in O. S. No. 1017 of 1983, annexure-5 and order dated 18. 4. 1994, passed by O. P. No. 2, Annexure-10, rejecting restoration application and appellate order dated 31. 1. 1985, confirming trial Courts order, Annexure-16 passed by O. P. No. 1 to the writ petition. ( 2 ) FACTS born out from the record are inter alia. The dispute relates to plot No. 2903 area 07 acres situated in village Deoria Khas, district Deoria. The respondent No. 3 executed a sale deed in respect of the land in favour of the petitioner No. 1 on 17,4. 1977. The remaining land of the said plot i. e. , 0. 14 acres was transferred to Ramendra Nath Rai. ( 3 ) THE Suit No. 517 of 1971 was filed for cancellation of two sale deeds dated 17. 4. 1977 by siddheshwar Mani and others, collaterals of respondent No. 3 Kapil Deo, who filed written statement admitting that the disputed property was sold by him in favour of petitioner No. 1 and ramendra Nath Rai. The aforesaid suit was dismissed on 30. 8. 1982. This decree became final. ( 4 ) THE respondent No. 3 filed Suit No. 1017 of 1983 for cancellation of the sale deed dated 17. 4. 1970 executed in favour of the petitioner No. 1. The aforesaid suit was decreed ex parte on 14. 9. 1983. ( 5 ) THE petitioners moved an application under Order IX, Rule 13 under Section 151 of C. P. C. for setting aside ex parte decree dated 14. 9. 1983 and for restoring the suit to its original number. This application was supported by an affidavit. ( 6 ) GROUNDS taken in the aforesaid application were inter alia, the respondent got the knowledge of the ex parte decree on 14. 12. 1983, that no notices were served on the defendants, service by refusal was procured by plaintiff in collusion with the Process Surver ; actually no notice reached to the defendant. ( 7 ) THE trial court. by its order dated 18. 4. 1994 rejected the application. Appeal No. 27 of 1985 preferred by the defendant was dismissed on 31. 1. 1985. ( 7 ) THE trial court. by its order dated 18. 4. 1994 rejected the application. Appeal No. 27 of 1985 preferred by the defendant was dismissed on 31. 1. 1985. ( 8 ) THE learned counsel for the petitioner contended that no notice was served to the petitioner, report of refusal was obtained in collusion with the Process Server, courts below while deciding the restoration application based solely on question-answer 31ga. There is no evidence to corroborate question-answer, as no application for inspection by the defendant was given on 6. 10. 1983 as alleged by plaintiff, she came to know about the ex parte decree on 14. 12. 1983 when the inspection application was moved after rumours in the village. The application for restoration is within time from the date of knowledge. Service of summons is specifically denied by the petitioner, her case is fully supported by an affidavit and other materials available on record. The ex parte decree was obtained without service of the notice to defendant. It is liable to be set aside. No opportunity to lead evidence in support of the application was also given. ( 9 ) LEARNED counsel for the respondent contended that there is a clear cut finding of fact recorded by the courts below that the defendant-petitioner had knowledge about the ex parte decree on 6. 10. 1983 and as such the application for restoration was rightly held to be barred by time. Matter is concluded by finding of fact, no interference is called for in the writ jurisdiction. He relied on 1998 RD 18 and 1994 ALR 1954. ( 10 ) HAVING heard Sri A. K. Singh learned counsel for the petitioner and Sri. H. S. N. Tripathi, learned counsel for the respondent, considered the respective submissions made by the learned counsel for the parties, I am of the view that writ petition deserves to be allowed. He relied on 1998 RD 18 and 1994 ALR 1954. ( 10 ) HAVING heard Sri A. K. Singh learned counsel for the petitioner and Sri. H. S. N. Tripathi, learned counsel for the respondent, considered the respective submissions made by the learned counsel for the parties, I am of the view that writ petition deserves to be allowed. ( 11 ) ORDER IX, Rule 13 of C. P. C. runs as follows : "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 satisfied 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. " ( 12 ) FROM the perusal of material on record, it appears that specific case taken by defendant/petitioner was that no notice was ever served and she never refused to receive the summons. Both the courts below have not recorded any finding that the summons were duly served on the defendant. Though only two findings were required firstly, summons was not duly served and secondly the defendant was prevented by any sufficient cause from appearing in the suit on the dates of hearing. ( 13 ) THE record clearly speaks that no summons were served at all on the defendant. This fact becomes clear from the report of the Process Server (Annexure-6) to the writ petition. Para 8 of the writ petition, was replied in para 9 of the counter-affidavit filed by Daya Shankar Sharma. The facts stated in para 8 of the writ petition as well as Annexure-6 relating to report of Process server to the writ petition has not been denied. ( 14 ) THE report of the Process Server in case of refusal of service must contain the name and address of the person through whom the house was identified and in whose presence the copy of summon was affixed. There is nothing on record how the Process Server identified the house of the defendant and with the help of whom. There is nothing on record how the Process Server identified the house of the defendant and with the help of whom. The report does not mention that a copy of the plaint was also served and was refused. This clearly supports the petitioners case that the summons were not served. ( 15 ) ORDER V, Rule 18 of C. P. C. runs as under : "endorsement of time and manner of service.--The service 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, a return stating the time when and the manner in which the 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. " ( 16 ) THE finding on factum of knowledge of the defendant on 16. 10. 1983. Is not supported by any evidence on record. The trial court has relied on paper No. 31 GA as "unchallenged document" and presumed the knowledge of defendant on the basis of question-answer dated 16. 10. 1983, paper No. 31 Ga of the plaintiff while recording the finding on knowledge of the ex parte decree. ( 17 ) THE defendant challenged this paper No. 31 Ga as manipulated and obtained by the plaintiff after filing of the restoration application in collusion with staff of the civil court. ( 18 ) TRIAL court without looking into the relevant material on record wrongly rejected restoration application. Materials on record conclusively prove that no such Inspection application was ever filed or was in existence. ( 19 ) THE application dated 22. 7. 1986 for summoning the record as well as application dated 14. 10. 1987 for summoning papers relating to inspection including Inspection Register moved by the defendant was illegally rejected on the ground that it is admitted by the defendant that the application for Inspection dated 6. 10. 1983 is forged and does not contain any signature of defendants counsel. From the report of the Inspection clerk/incharge of office of inspection, dated 22. 9. 1986 also it is clear that no such application by defendant dated 6. 10. 1983 for inspection is available in his office. 10. 1983 is forged and does not contain any signature of defendants counsel. From the report of the Inspection clerk/incharge of office of inspection, dated 22. 9. 1986 also it is clear that no such application by defendant dated 6. 10. 1983 for inspection is available in his office. ( 20 ) THE cumulative effect of all materials on record leads to only one conclusion that the paper no. 31 Ga question-answer cannot be relied upon. No such application for inspection was given by defendants counsel on 6,10. 1983. Courts below erred in law in treating paper No. 31ga as "unchallenged document" and dismissed restoration application presuming the knowledge of defendant on 6. 10. 1998. The finding of the Court below of the factum of knowledge of the defendant on 6. 10. 1998 of the ex parte decree is perverse, based on irrelevant and inadmissible material and cannot be sustained in law. ( 21 ) ARTICLE 123 of the Limitation Act specifically mentions that limitation for filing restoration application will start from the date of knowledge in case notices were not served. Article 123 of the Limitation Act runs as under : description of suit Time from which period period begins to of runlimitat ion to set aside a Thirty The date of the decreepassed ex daysdecree or where parte or to rehear the summons or an appeal decree or notice was not heard ex parteduly served when the applicant had knowledge of the decree. Explanation. For, the purpose of this article, substituted service under Rule 20 of order V of the code of Civil procedure, 1908 (5 of 1908) shall not be deemed to be due service. ( 22 ) I find that summons were not served on defendant. She came to know about the ex parte decree for the first time on 14. 12. 1983. The application for restoration is within time from the date of knowledge. Sufficient cause was shown by the petitioner for her absence on the date of hearing. ( 23 ) IN the facts and circumstances of the case, the writ petition succeeds and is allowed with a cost of Rs. 2,500 (Two thousand and five hundred) only. ( 24 ) THE ex parte decree dated 14. 9. 1983 in O. S. No. 1017 of 1983, Annexure-5 and the order dated 18. 4. ( 23 ) IN the facts and circumstances of the case, the writ petition succeeds and is allowed with a cost of Rs. 2,500 (Two thousand and five hundred) only. ( 24 ) THE ex parte decree dated 14. 9. 1983 in O. S. No. 1017 of 1983, Annexure-5 and the order dated 18. 4. 1994 passed by O. P. No. 2, Annexure-10 and the appellate order dated 31. 1. 1985, annexure-16 passed by O. P. No. 1 are quashed. ( 25 ) THE parties are directed to appear before the trial court on 8. 7. 2002. The trial court will proceed with the case if necessary on day to day basis so that suit itself be decided on merit within six months from the date a certified copy of this order is produced before the trial court. .