Judgment Abhay M. Naik,J. ( 1. ) This Misc. Appeal is directed against an order dated 26/2/07 passed by the court of Fourth Additional District Judge, Morena(M.P.) in MJC No. 1/06, rejecting thereby an application under Order 41 Rule 21 of C.P.C. ( 2. ) Briefly stated facts are that the plaintiff/respondent instituted Civil Suit No.ll-B/05 for recovery of amount of Rs.49,000/-(Rs. Forty nine thousand only) wherein the defendant/appellant did not appear. Suit was dismissed ex parte on 5/8/05. Aggrieved by it, plaintiff/respondent submitted regular Civil Appeal No.1-B/05 wherein notice was issued to defendant/appellant which came back with an endorsement that the defendant declined to accept it. Ultimately, appeal was allowed in ex parte manner and the suit stood decreed vide judgment and decree dated 16/1/06. Thereafter, the defendant/appellant submitted an application for re-hearing under Order 41 Rule 21C.P.C., on 20/3/06 along with an application under section 5 of the Limitation Act for condonation of delay. It was inter alia alleged that the notice in the appeal was neither tendered to the appellant nor was refused by him. This application was opposed. Lower appellate court after recording the evidence, dismissed the applications under Section 5 of the Limitation Act as well as under Order 41 Rule 21 C.P.C. Aggrieved by the same, present appeal has been preferred. ( 3. ) Shri Soni,learned counsel for the appellant contended that the appellant was not served with the notice of appeal. Accordingly, it is contended that the appeal was liable to be re-heard. ( 4. ) Shri D. D. Bansal,learned counsel for the respondent submitted, firstly, that since the defendant was ex parte in the trial court, no notice was required to be issued to him in view of the provisions contained in Order 41 Rule 14 C.P.C. Secondly, it is contended that since the defendant declined to accept notice it has been rightly treated as served and the ex parte proceedings are quite sustainable in law. ( 5. ) Considered the rival submissions and perused the record. ( 6. ) Order XLI of the Code of Civil Procedure deals with appeals. Sub-rule (1) of Rule 14 requires an appellate court to issue and serve notice on the respondent in the manner provided for the service on defendant of summons to appear and answer. ( 5. ) Considered the rival submissions and perused the record. ( 6. ) Order XLI of the Code of Civil Procedure deals with appeals. Sub-rule (1) of Rule 14 requires an appellate court to issue and serve notice on the respondent in the manner provided for the service on defendant of summons to appear and answer. All the provisions applicable to such summons and to proceedings with reference to the service thereof, are made applicable by virtue of this sub-rule. However, sub-rule (4) reads as follows:-"Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal." A bare look on the aforesaid provision makes it clear that it applies to any proceeding incidental to an appeal and not to the appeal itself on merits. However, it is important to take note of sub-rule (3) which has been added by virtue of the amendment caused by the High Court of Madhya Pradesh vide Notification No. 5283-A published in M.P. Gazette dated 16/6/1960 part- IV. Following sub-rule (3)has been added by this court in Rule 14 of Order XLI:-"(3) the Appellate Court may, in its discretion, dispense with notice to any respondent against whom the suit was heard ex parte". ( 7. ) Aforesaid rule is added by virtue of Chapter 20 of the M.P. High court Rules and Orders. The lower appellate court could have, in its discretion, dispensed with notice of Civil appeal No.1-B/05 to the defendant/appellant. This being an enabling provision, it could have been invoked only by exercising, in specific, the powers conferred thereby on the appellate court. Such a power needs to be exercised by passing specific order of dispensation in writing. On perusal of the order sheets of the lower appellate court, it is found that no such power was exercised by invoking the amended provision contained in Sub-rule (3). On the contrary, the notice was directed to be and, in fact, issued to the defendant/respondent therein (i.e., the present appellant) and the plaintiff/appellant was directed to pay requisite process-fee. On perusal of the order sheets of the lower appellate court, it is found that no such power was exercised by invoking the amended provision contained in Sub-rule (3). On the contrary, the notice was directed to be and, in fact, issued to the defendant/respondent therein (i.e., the present appellant) and the plaintiff/appellant was directed to pay requisite process-fee. Thus, it cannot be said that the appeal could have been legally heard and decided without effecting service on the defendant/respondent therein and the plaintiff/appellant cannot get benefit of Rule 14 (3) of Order XLI of the Code of Civil Procedure, as amended in the State of M.P. ( 8. ) Distinction between sub-rule (4) of Rule 14 of Order 41 and Rule 3 added by way of amendment is that by virtue of sub-rule (4) proceedings incidental to an appeal are not vitiated merely in the absence of notice on any respondent who did not chose to give appearance and file an address for service in the Court of first instance whereas by virtue of Rule 3 (supra) appellate proceedings may be vitiated even against any respondent against whom the suit was heard exparte if prejudice is shown to have been caused to him and the appellate Court has not passed specific order dispensing with notice on any such respondent. ( 9. ) On further perusal it is found that the notice of the civil appeal was issued in ordinary manner and the plaintiff was directed to pay ordinary process fee in contra- distinction to special process fee. Since the provision applicable to proceedings with regard to summons are made applicable by virtue of sub-rule (1) of Order XLI, it would be appropriate to consider the necessary provision regarding service of summons contained in Rule 17 of Order V of C.P.C,alongwith relevant M.P. Amendment Rules. Order V Rule 17 reads as under:- "17. Since the provision applicable to proceedings with regard to summons are made applicable by virtue of sub-rule (1) of Order XLI, it would be appropriate to consider the necessary provision regarding service of summons contained in Rule 17 of Order V of C.P.C,alongwith relevant M.P. Amendment Rules. Order V Rule 17 reads as under:- "17. Procedure when defendant refused to accept service, or cannot be found.- where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant [who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, within report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed." Madhya Pradesh- In order V, rule 17, insert the following proviso, namely:-"Provided that where a special service has been issued and the defendant refuses to sign the acknowledgment it shall not be necessary to affix a copy as directed hereinafter." ( 10. ) It is amply clear from the aforesaid that if the defendant refused to accept service which is issued against ordinary process fee and not by special process fee, service was to be necessarily effected by affixation in view of the aforesaid provision. Since notice to the defendant before lower appellate court was issued against ordinary process fee, there could not been valid service without affixation. Since notice to the defendant before lower appellate court was issued against ordinary process fee, there could not been valid service without affixation. Since there was, admittedly, no affixation of the notice on defendants address, it was not within the powers of the lower appellate court to accept the service merely on the basis of the denial except after affixation. Thus, it is clear that the defendant/appellant was not duly served in Civil Appeal No.1-B/05 and the learned lower appellate judge has acted illegally in accepting the service on defendant/appellant without affixation. ( 11. ) Shri Bansal,learned counsel for the respondent placed reliance on the decision of the Apex court in the case of Indu Bhushan Vs. Munna Lal and another ( 2007)14 SCC 42), which is not applicable to the present case because the local amendment in the State of Madhya Pradesh was not attracted in that case. ( 12. ) As regards contention about Order 41 Rulel4 C.P.C.,it may be seen that this provision empowers the court to dispense with service of notice of any proceeding incidental to an appeal. This provision is of enabling nature which makes it clear that it shall not be necessary to serve notice of any proceeding incidental to an appeal. In the instant case, the lower appellate court does not appear to have exercised this power. On the contrary, service in Civil appeal No.l-B/05 was issued which has been accepted by the lower appellate Judge ignoring the provisions added by way of amendment in the State of Madhya Pradesh in Rule 17 of Order 5 C.P.C. ( 13. ) Eventually, the order impugned is not sustainable in law. Service is not found to have been effected in accordance with law. Accordingly, application under Sec. 5 of the Limitation Act also deserved to be allowed and is hereby accordingly allowed. Since the defendant/appellant was not duly served, limitation would commence from the date of knowledge as envisaged under Article 123. Appeal accordingly stands allowed. Parties to appear before the lower appellate court on 16th of November, 09. No fresh notice is required to be issued to the parties. Thereafter, learned lower appellate judge shall decide the appeal latest by 31st of December, 09. No order as to costs. Appeal allowed.