ORDER W.A. Shah, J. Shri B.L. Pavecha, learned Senior Advocate assisted by Shri Nitin Phadake, counsel for the Appellant. Shri Yash Pal Rathore, Learned Counsel for the Respondent. At this motion hearing stage, with the consent of both the Learned Counsel, arguments for final disposal are heard. Perused the record. ORDER This is an appeal under Order XLI, Rule 1(d) of the CPC ("Code" hereafter) against the order dated 23-2-2006 passed by learned Additional District Judge, Jhabua in M.J.C. No. 1/2005 which arose out of Civil Suit No. 9-B/2001 of the same Court. The Respondent/Plaintiff instituted a suit against the Defendant/Appellant for recovery of Rs. 50,000.00 claiming it to be the unpaid price of goods alleged to have been delivered to the Defendant/Appellant. A claim for interest by way of damages was also made in the suit at the rate of 16% per annum. The suit was instituted in the Court of learned Additional District Judge, Jhabua on 6-10-2001 and it was registered vide order dated 10-10-2001 as Civil Suit No. 9-B/2001. Summons were ordered to be issued to the Defendant, the same day and for settlement of issues for 21-1-2002. On 21-1-2002 office of Presiding Officer was vacant, case was fixed up for 28-2-2002 by the Reader. On 28-2-2002 the Presiding Officer of the Court directed for summons for settlement of issues and fixed up 29-4-2002. On the said date so fixed, the summons was received unserved and the Presiding Officer was also on leave. The Reader fixed up the case for orders and date so fixed up was 7-5-2002. On 7-5-2002 the Presiding Officer directed that notice be issued to the Defendant for 21-8-2002 on payment of process fee within 3 days, however, process was not paid before 23-5-2002. On 23-5-2002 when the process was paid, Process No. 648 was issued on 8-8-2002 for 21-8-2002. Incidentally on 21-8-2002 also the Presiding Officer was on leave and the Defendant did not stand served, the Reader fixed up the date for orders on 24-9-2002. In the meanwhile on 23-8-2002 the summons served upon the Defendant was received back for the date 21-8-2002 which had passed earlier. The summons was put into record. On 24-9-2002 the Presiding Officer on the basis of the summons served for 21-8-2002 decided to proceed ex parte against the Defendant. The Defendant was not present on 24-9-2002 also. In the meanwhile on 23-8-2002 the summons served upon the Defendant was received back for the date 21-8-2002 which had passed earlier. The summons was put into record. On 24-9-2002 the Presiding Officer on the basis of the summons served for 21-8-2002 decided to proceed ex parte against the Defendant. The Defendant was not present on 24-9-2002 also. Date for ex parte evidence was fixed up as 30-10-2002. After some adjournments, on 17-12-2002 ex parte evidence was recorded and on 19-12-2002 ex parte decree was passed. On 14-2004 the decree holder filed execution for a sum of Rs. 94,647-00. A direction was given by the Execution Court that notice under Order XXI, Rule 22 of the Code be issued to the judgment Debtor for 23-2-2004. For want of process fee, process was not issued for 23-2-2004. The Execution Court directed that the same should go for 24-3-2004. On the said date notice was not received served or unserved. When after some adjournments the execution case came up for hearing, the Court directed for the service by affixation. On 31-8-2004 notice was received back with the report that it had been served as "refused". The Presiding Officer was on leave. For orders, 14-9-2004 was fixed up. On 14-9-2004 the Court declared that the notice has been served, warrant of attachment be issued, ex parte. On 30-11-2004 warrant was received unserved with the report that judgment Debtor was not available and on 18-12-2004 as reported attachment could not be effected because of the resistance offered by the judgment Debtor (Defendant/Appellant) and his brother. On 18-1-2005 the Appellant applied for certified copy of the ex parte decree and received the said copy on the same date. On the same day i.e. 18-1-2005 he filed an application for setting-aside the ex parte decree under Order IX, Rule 13 of the Code along with application u/s 5 of the Limitation Act, supported by affidavit. The present Respondent/Plaintiff opposed the aforesaid applications. The learned Court below vide the order impugned dated 23-2-2006 held that the Defendant/Appellant had the notice of the ex parte decree from 31-8-2004 and, therefore, his application u/s 5 of the Limitation Act was mala fide. He rejected the application, consequently refused to entertain the substantive application for setting-aside the ex parte decree under Order IX, Rule 13 of the Code. He rejected the application, consequently refused to entertain the substantive application for setting-aside the ex parte decree under Order IX, Rule 13 of the Code. Feeling aggrieved thereby, the Defendant/Appellant has brought this matter in this appeal before this Court. The first point for consideration is whether the delay in presentation of application for setting-aside ex parte decree was condonable? From the record it is seen that the learned Court below observed that as per the order-sheet in the execution case, the notice to the Appellant for 31-8-2004 was returned with the report that he was found at his residence but he refused to accept the notice. The learned Court below, therefore, on the basis of the above held that the Defendant/Appellant had the notice of the ex parte decree from 31-8-2004 and not from 18-12-2004. Here it is to be considered whether the said notice was for conveying the information as to the ex parte decree under reference. The point for present consideration arises because of the language implied under Article 123 of the Limitation Act. Article 123 provides that for setting-aside an ex parte decree in the circumstances where the summons was not duly served, the period of limitation should start from the knowledge of the decree. From the record of the case it is also seen that in Civil Suit No. 9-B/2001 when the case came up for hearing on 21-8-2002, the Presiding Officer was on leave and the Reader had fixed up the case for orders on 24-9-2002. Further it is seen that on 24-9-2002 the learned Presiding Officer of the Court below on the basis of the report on the summons issued to the Defendant/Appellant for 21-8-2002 held that the Defendant stood served for 21-8-2002 and his non-appearance warranted ex parte proceedings against him as he was also not present the day when case was taken up i.e. on 24-9-2002. In this connection it may be pointed out that the date so fixed up by the Reader was not a date for hearing and, therefore, in the absence of the date for hearing, the learned Court below did not have the jurisdiction to decide to proceed ex parte against the Defendant/Appellant. Therefore, there was no due notice of the date of hearing to the Appellant on which date he was decided being proceeded ex parte. Therefore, there was no due notice of the date of hearing to the Appellant on which date he was decided being proceeded ex parte. In this connection a reference may be made to 1978 (1) MPWN 443 . In view of the above discussions, this is a case which is governed by the II Clause of Article 123 of the Limitation Act for starting point of limitation i.e. from the date of the knowledge. The finding of the Court below that there was a notice of decree in question to the Appellant from 31-8-2004 cannot be considered to be a notice of the decree because the notice which was issued was during the execution proceedings. The learned Court below has also not recorded a finding that it was a notice of the decree under reference. Vide AIR 1967 SC 1384 , Panna Lal vs. Murari Lal it has been observed that knowledge of the decree in this connection means knowledge of the particular decree which is sought to be set-aside. It is further held therein that in cases where summons were not duly served, limitation for setting-aside the ex parte decree does not start running against the Defendant because he has received some vague information that some decree has been passed against him. It is further said that it is a question of fact in each case whether the information conveyed to the Defendant is sufficient to impute to him knowledge of the decree. The test of the sufficiency is not what the information would mean to a stranger, but what it meant to the Defendant in the light of his previous dealing with the Plaintiff and the facts and circumstance known to him. It has been held further that if from the information conveyed to him the Defendant has knowledge of the decree sought to be set-aside, time begins to run against him. In these circumstances of the present case the knowledge required in the matter has not been acquired by the Defendant/Appellant. The Defendant/Appellant along with his application for setting-aside the decree, filed an application u/s 5 of the Limitation Act, supported by affidavit, showing that on 18-12-2004 he came to know about the ex parte decree under reference and he applied for certified copy on 18-1-2005 and the same day he presented the application on receiving the certified copy. The Defendant/Appellant along with his application for setting-aside the decree, filed an application u/s 5 of the Limitation Act, supported by affidavit, showing that on 18-12-2004 he came to know about the ex parte decree under reference and he applied for certified copy on 18-1-2005 and the same day he presented the application on receiving the certified copy. The application also makes out a ground for the delay of one day in the presentation of the application for setting-aside the ex parte decree being based on knowledge of the decree acquired late. It is settled law that the law of limitation is a law of peace and the provisions of the same are to be liberally interpreted to serve the cause of justice except where there is lack of bona-fides which has resulted into accrual of right to the other side as a result of gross negligence on the part of the person seeking condonation. In this connection reference may be made to M.K. Prasad Vs. P. Arumogam, . Accordingly the delay in presentation of application for setting aside ex parte decree was condonable and the Court below went wrong in refusing to condone the delay. Therefore, the above delay is hereby condoned to meet the ends of justice. To save unnecessary delay, I would proceed on merits also. Therefore, now the point for consideration is whether the Defendant is successful in demonstrating that he was not served with the summons of the suit under reference according to law? The record of the civil suit shows that bare summons was handed over to him by the Bailiff without handing over him a copy of the plaint. It is so because in the Bailiffs report it is clearly mentioned that he delivered only copy of the summon to the Defendant/Appellant. As such service of summons upon the Defendant is not valid. Ex parte decree passed against the Defendant is liable to be set-aside. Reference in this respect may be made to Smt. Chhutbai and Another Vs. Madanlal and Another, In view of what has been stated above, this appeal deserves to be allowed because the Defendant/Appellant was not legally served with the summons of the suit under reference and he was prevented by circumstances not showing any malice on his part in presentation of the application for setting-aside the ex parte decree within limitation. Madanlal and Another, In view of what has been stated above, this appeal deserves to be allowed because the Defendant/Appellant was not legally served with the summons of the suit under reference and he was prevented by circumstances not showing any malice on his part in presentation of the application for setting-aside the ex parte decree within limitation. Allowing this appeal with a cost of Rs. 1,000-00 the ex parte decree under reference is hereby set-aside. The Court below is directed to restore Civil Suit No. 9-B/2001 to its proper position and dispose of the same according to law within four months. The parties are directed to remain present before the Court below on 11th December, 2006. Accordingly this appeal stands disposed of. Final Result : Allowed