Judgment ( 1. ) THE appellant has preferred this appeal being aggrieved by the order dated 16-5-2007 passed by 7th Additional District Judge, Bhopal in M. J. C. No. 88/05 dismissing his application filed under Order 9 Rule 13 of CPC for selling aside exparte decree passed in Civil Original Suit No. 92-A/04, vide dated 6-1j -2004. ( 2. ) BRIEF facts of the appeal are that the respondent filed the aforesaid suit against the appellant for eviction regarding some accommodation situated in the City of Bhopal. Prior to the aforesaid suit some other suit in respect of some other accommodation filed by the respondent was pending between them in the Court of 6th Civil Judge, Class II, Bhopal as Civil Original Suit No. 7-A/04. The appellant was defending such suit. As per the case of the appellant, after filing the aforesaid Civil Original Suit No. 92-A/04 (Old No. 40-A/03) its notice was never served on the appellant, thus she could not appear in such case, but by fabricating the papers regarding service of such notice by the mode of substitute service the case was proceeded against her ex parte and the ex parte decree was passed in such suit on 6-12-2004. The same was known to the appellant only on 16-3-2005 when respondent Counsel disclosed the same while hearing of the aforesaid other Suit No. 7-A/04. Subsequent to it, after obtaining the copy of such ex parte judgment and decree the petition under Order 9 Rule 13 of CPC for setting aside the same was preferred in the Trial Court. ( 3. ) IN reply of the respondent, the averments of such application were denied. In addition it was pleaded that notice/summons of the suit was dully served over the appellant, in spite it she deliberately did not appear and committed willful default. The cause shown by the appellant for setting aside ex parte decree is neither bona fide nor reasonable and prayed for dismissal of such application. ( 4. ) AFTER recording the evidence on appreciation of it the Trial Court dismissed the application by holding the same as malafide and barred by time from the date of decree and also the same is not filed with the application under section 5 of Limitation Act showing the sufficient cause for condoning the delay in filing such proceedings at belated stage. The same is under challenged in this appeal. The same is under challenged in this appeal. ( 5. ) SHRI V. K. Mishra, learned Counsel for the appellant by referring the photocopy of alleged served notices said according to it the same were served over the appellant by substituted service of affixation of notice on the date of hearing of the suit, i. e. , 29-6-2004. He also referred the service report dated 29-6-2004 submitted by the process server to the concerning Deputy superintendent of Court after service of such notices which is signed by such officer with his official seal on dated 28-6-2004, it shows that actually service of notice was never made over the appellant and only in order to facilitate the respondent some papers have been prepared by the concerning process server with the conspiracy of said Court official. These circumstances are sufficient to draw an inference that notice of the suit was never served on the appellant as per the prescribed procedure in spite the case was preceded ex parte on such polluted service report. ( 6. ) SO far explanation of filing the petition at the belated stage is concerned, he said that same is preferred within time from the date of the knowledge as the appellant knew about the ex parte decree only on 16-3-2005 and its copy was obtained on 21-3-2005 and as per Article 123 of the Limitation act no separate application for condonation of delay was required. He further said that the Trial Court has committed error in appreciation of evidence. The respondent herself did not enter in the witness box to rebut the evidence led by the appellant and the evidence of power of attorney holder on behalf of the respondent could not be acted upon unless the same is supported by respondent herself, but contrary to it by misreading of the evidence application of the appellant has been dismissed. Beside it, it was also said that in any case when the appellant was contesting the other case filed by the respondent then there was no occasion for her not to defend the impugned suit and prayed for allowing the appeal accordingly. ( 7. ) WHILE opposing the aforesaid argument Smt. Shobha Menon, learned Senior Advocate said that apparently the application of the appellant was barred by time and the same was preferred without any application under section 5 of Limitation Act for condoning the delay. ( 7. ) WHILE opposing the aforesaid argument Smt. Shobha Menon, learned Senior Advocate said that apparently the application of the appellant was barred by time and the same was preferred without any application under section 5 of Limitation Act for condoning the delay. Hence, the Trial Court has not committed any error in dismissing the petition on that count. She further said that as per service report of summon the same were duly served on the appellant, in spite such service the appellant was not appeared, therefore, case was proceeded ex parte and the decree was passed and same could not be set aside as it is in accordance with law and prayed for dismissal of this appeal. ( 8. ) HAVING heard the learned Counsels, I have gone through the photo- copies of the appellants application filed under Order 9 Rule 13 and its reply and evidence led by the parties, the alleged summons with the endorsement of the process server and its report submitted by the process server. It appears that the notice of Civil Original Suit No. 92-A/04 (Old Civil original Suit No. 40-A/03) was issued on 26-5-2004 for hearing of the case on 29-6-2004 and the same were served by affixation at three difference places only on dated 29-6-2006 as per endorsement of process server at the backside of such notices. The compliance report regarding service of such notices submitted by the process server in the office of Dy. Superintendent of Court on 29-6-2004 but the same was received by said official on 28-6-2004 as per signature and seal of such officer accordingly the service report was submitted and received a day before from the service of such notice. Mere on this count, it appears that summons were not duly served in compliance of prescribed procedure and papers regarding service of notices were prepared contrary to the prescribed procedure and also against the interest of the appellant. It shows that entire proceeding of ex parte and in pursuance of it the ex parte decree was passed without giving any opportunity of hearing to the appellant. ( 9. ) EVEN apart if the summons was served over the appellant only on the date of hearing, i. e. , 29-6-2004 then it was not possible for the person like appellant to come and defend the case in the Court on the same day. ( 9. ) EVEN apart if the summons was served over the appellant only on the date of hearing, i. e. , 29-6-2004 then it was not possible for the person like appellant to come and defend the case in the Court on the same day. At earlier occasion this question was considered and answered by the Apex Court in the matter of Gauhati University Vs. Niharlal Bhattacharjee, reported in (1995) 6 scc 731 , in which it was held as under:- "5. It would thus be seen that when the summons is proved to be duly served, then the limitation begins to run under Article 123 from the date of decree. But when the summons, though served, but the defendant does not have due time, clause (c) Rule 6 of order 9, envisages further notice to give, fixing a future date and the Court shall direct notice of such date to be given to the defendant. In this case, admittedly, no such step had been taken. 6. It is seen that though notice was served on the appellant on 28-5-1990 and the date fixed for appearance was 29-5-1990, there was no time much less sufficient, to reach the Court for appearance on that date. While adjourning the suit to 19-7-1990, the said date was not communicated to the appellant, as envisaged in clause (c)of Rule 6 of Order 9. Thus, the summons was not duly served. The limitation began to run only when the appellant had knowledge of the ex parte decree. From the date of the knowledge, admittedly, the application was filed within thirty days. The Courts below had not adverted to this aspect from this perspective. " ( 10. ) IN view of the aforesaid, it is held that summons of the suit was not duly served over the appellant and in such background the Trial Court ought to have set aside the ex parte decree by allowing the application of the appellant filed under Order 9 Rule 13 of CPC. ( 11. ) SO for question of limitation for filing the application under Order 9 Rule 13 of CPC is concerned, the Article 123 of Limitation Act is very specific, the same is read as follows :-123. To set aside a decree passed exparte or to rehear an appeal decreed or heard ex parte. ( 11. ) SO for question of limitation for filing the application under Order 9 Rule 13 of CPC is concerned, the Article 123 of Limitation Act is very specific, the same is read as follows :-123. To set aside a decree passed exparte or to rehear an appeal decreed or heard ex parte. Explanation :- For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service. Thirty days the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. ( 12. ) IN view of the aforesaid dictum of the Apex Court in the matter of gauhati University (supra), and the finding that the notices were not dully served over the appellant and in view of the available evidence the appellant came to know about ex parte decree only in the month of March, 2005 when it was disclosed by the Counsel for the respondent during the course of hearing the other case. Under such circumstance appellants application comes under the later part and second limb of aforesaid Article 123 of Limitation Act and same was filed with in limitation from the date of knowledge. Hence, it is held that the application filed by the appellant under Order 9 Rule 13 of CPC was within limitation from the date of the knowledge of the impugned ex parte decree. ( 13. ) UNDER the aforesaid premises by allowing the appeal the impugned order dated 6-12-2004 is hereby set aside and the appellants application under order 9 Rule 13, CPC is allowed. The ex parte decree passed in Civil Original suit No. 92-A/04 (Old No. 40-A/03) is hereby set aside. The Trial Court is directed to decide such original suit afresh by extending the opportunity of hearing to the parties in accordance with law. ( 14. ) APPEAL is allowed as indicated above. Misc. Appeal allowed.