ORDER Abhay M. Naik, J. 1. This appeal has been preferred against the order dated 11-11-2008 passed by Shri Sanjay Kumar Jain, Second Additional District Judge, Fast Track, Court Harda in MJC No. 3 of 2006. 2. Short facts involved herein are that the applicants/appellants submitted an application under Order 9, Rule 13 of Civil Procedure Code with allegations that the plaintiff/respondents obtained a decree for eviction in a fraudulent manner knowing fully well that the decree put into execution was not obtained against the applicants/appellants. 3. Facts emerging from the record are that plaintiff/respondent No. 2 is widow of Shrikrishna Kasve whereas plaintiffs/respondents No. 1 and 3 are his children. Thus, the respondent No. 2 was legally wedded first wife of Shrikrishna Kasve whereas the appellants No. 1 and 2 started living with him in the same house as a common family. After death of Shrikrishna Kasve, the applicant/appellants continued to occupy his property. 4. After the death of Shrikrishna Kasve, his legally wedded wife and children (i.e. the respondents herein), instituted a Civil Suit bearing No. 25-A/2005 in the Court of Second ADJ. (Fast Track Court) Harda, for possession and mesne profits which was decreed ex parte in their favour. The decree was put into execution, when it is alleged that the present appellants came to know for the first time about the decree having been passed against them in ex parte manner on 10-9-2005. Thereafter, an application under Order 9, Rule 13, Civil Procedure Code was submitted on 15-2-2006 on the ground that the appellant No. 1 is widow of late Shrikrishna Kasve and appellant No. 2 is daughter of Shri Shrikrishna Kasve, whereas, they were wrongly described in the Civil Suit as wife of Hamid Khan Musalman and daughter of Hamid Khan respectively. In view of the wrong description, they could not be served. It is stated in the application that the appellants were described in the Civil Suit in wrong manner knowing fully well that they were respectively wife and daughter of Shrikrishna Kasve. An ex parte decree was obtained in fraudulent manner and the same is liable to be set aside. An application under section 5 of the Limitation Act was also submitted on identical grounds. An ex parte decree was obtained in fraudulent manner and the same is liable to be set aside. An application under section 5 of the Limitation Act was also submitted on identical grounds. It was stated that on giving appearance for the first time in the execution case on 18-1-2006, the applicants/appellants came to know about the aforesaid ex parte decree having been passed against them. Certified copy was obtained on 31-1-2006 and, thereafter, the applications for setting aside as well as condonation of delay were submitted on 15-2-2006. The delay is, therefore, condonablc. 5. Plaintiffs/respondents submitted their reply stating therein that the name of the husband of Anisa, the appellant No. 1 is Hamid Khan Musalman and appellant No. 2 is daughter bom to appellant No. 1 from Hamid Khan Musalman. They are wrongly describing themselves to be widow and daughter of Shrikrishna Kasve in order to grab the property left by deceased Shrikrishna Kasve. Civil Suit was duly instituted with correct description of the husband and father of appellants respectively. Summons were duly served upon them in the Civil Suit. The suit property was purchased by Shrikrishna Kasve vide registered sale deed in the form of plot. He had constructed a house on it. Shrikrishna Kasve died on 9-12-2002, thereafter, the applicants-appellants forcibly dispossessed the plaintiffs/respondents. Therefore, the suit was instituted for possession and mesne profits which was rightly decreed in their favour. There being no dispute about identity of the applicants/appellants, the decree put into execution, is well executable against them. This apart, it has been clearly stated that the applicants were well aware of the Civil Suit. Since the summons were duly tendered to them, they despite knowledge about date of hearing, did not choose to appear in the Civil Suit. Thus, by virtue of second proviso to Order 9, Rule 13, Civil Procedure Code, applications submitted by the applicants/appellants are liable to be dismissed. 6. Learned trial Court after recording the evidence dismissed the applications vide order dated 11-11-2008, hence this appeal. 7. Shri Ashish Shroti, learned counsel for the appellants contended that the summons in Civil Suit No. 25-A/04 were not duly served. Provisions of Order 5, Rule 17 of Civil Procedure Code were not complied with and there was no due service of summons on applicants-appellants in the civil suit. 7. Shri Ashish Shroti, learned counsel for the appellants contended that the summons in Civil Suit No. 25-A/04 were not duly served. Provisions of Order 5, Rule 17 of Civil Procedure Code were not complied with and there was no due service of summons on applicants-appellants in the civil suit. It is further submitted that in the absence of examination of process server, applicants/ appellants cannot be deemed to have been served with the summons in the civil suit. Reliance for this purpose has been placed on the decision of Hon'ble Supreme Court rendered in the case of Sushil Kumar Sabharwal vs. Gurpreet Singh and others, AIR 2002 SC 2370 , and on decision of this Court in 2003 (3) MPLJ 414, Shakuntala Singh vs. Basant Kumar Thakur and others. Further reliance has been placed on the decision of this Court in the case of Baijnath Mishrilal Kachhi vs. Harishankar and others, (2001) 2 MPLJ 142 to contend that in case of refusal of service of summons, the same has to be affixed in the presence of witness and report has to be endorsed by the process server in that regard. 8. Before entering into the arguments of the learned counsel for the appellants, this Court is obliged to take note of second proviso to Order 9, Rule 13 of Civil Procedure Code which reads as follows ;- Provided further that no Court shall set aside the 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 plaintiffs claim. This proviso came up for consideration before the learned Division Bench of this Court in the case of Ram Narayan vs. State Bank of Indore and another, 2092 (2) MPLJ 585 wherein it has been observed :- 'The effect of aforesaid amended provision to Rule 13, Order 9, Civil Procedure Code will be that no notice can be held invalid merely on the ground that it was not issued in proper proforma. What is required under the amended provision is that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. What is required under the amended provision is that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Now no ex parte decree can be set aside merely on the ground that there has been an irregularity in the service of the summons. 9. This case has peculiar facts as found by the learned trial judge on the basis of evidence on record. Shrikrishna Kasve had Gayatri Devi respondent No. 1 as his legal wedded wife and other respondents as his children. The present appellants started residing with him in the suit property. After the death of Shrikrishna Kasve, they claimed to have inherited the suit property as legal heirs of the said deceased. According to the plaintiffs/respondents they were dispossessed by the appellants. According to them the appellant No. 1 is wife of one Hamid Khan Musalman and appellant No. 2, her daughter from Hamid Khan. Accordingly, suit was instituted for possession and mesne profits describing the appellants respectively as wife and daughter of Hamid Khan Musalman. 10. Respondents have submitted documents with their reply. Summons of civil suit was tendered to appellant No. 1 as revealed in Annexure R/4. It was served on 26-9-2004 which was meant for giving appearance on 19th of October, 2004. It bears the signature in the name of Anita Kasve which does appear on the notice issued in the execution case vide Annexure R/8. Signatures on both these papers tally with each other which establishes that summons of the civil suit were duly served upon the appellants and they knew about the date of hearing of the civil suit with all particulars thereof. It was served on 26-9-2004 and was meant for giving appearance on 19-10-2004. Thus, the appellants had sufficient time to appear and answer the plaintiffs case. Appellants have not disputed the signature on Annexure R/4. They have not examined any Hand Writing Expert to establish that the signature contained in Annexure R/4 is not of appellant No. 1. Both the appellants are residing jointly and prosecuting the cause jointly. Thus, learned trial Court is found to have rightly concluded that in the light of second proviso to Order 9, Rule 13, Civil Procedure Code, the ex parte decree cannot be set aside. Both the appellants are residing jointly and prosecuting the cause jointly. Thus, learned trial Court is found to have rightly concluded that in the light of second proviso to Order 9, Rule 13, Civil Procedure Code, the ex parte decree cannot be set aside. On being served with the notice of summons vide Annexure R/4 the applicants/appellants could have appeared before the Civil Court trying the civil suit to contend that there was no proper description of them in the suit or on the summons. It seems that since they knew the reality, they did not appear to object before the trial Court in the civil suit. Respondents herein have placed on record Annexure R/9 which is certificate issued by the Assistant Surgeon of District Hospital, Seoni certifying thereby that Anisa w/o Hamid Khan Musalman had given birth to a daughter on 18-1-1986 in the District Hospital, Seoni. Contrary to this, the applicants/appellants have not placed any authentic document on record to establish that they were respectively wife/widow and daughter of late Shrikrishna Kasve. Appellant No. 2 could have submitted authentic school certificates/mark lists with a mention of Shrikrishna Kasve as her father. They have also not placed on record any authentic document about marriage of appellant No. 1 with Shrikrishna Kasve or about father's status of deceased Shrikrishna Kasve with respect to appellant No. 2. This having not been done, it seems that the appellants by way of impersonation are trying to grab the property of Shrikrishna Kasve and deprive his legal heirs of the property inherited by them by avoiding execution of the decree. 11. In none of the cases cited by Shri Ashish Shroti, learned counsel for the appellants, the second proviso to Order 9, Rule 13, Civil Procedure Code was invokable, hence they do not provide any assistance to the appellants. 12. There was no dispute that the applicants/appellants were and are in possession of the disputed property. The dispute raised by them was that they were not respectively wife and daughter of Hamid Khan Musalman but were wife and daughter of Shrikrishna Kasve. Considering the same, learned trial judge dealing with the civil suit made specific order on 23-12-2004 for effecting service after due identification. That too, was complied with as found by the learned trial judge in the end of paragraph 37. Considering the same, learned trial judge dealing with the civil suit made specific order on 23-12-2004 for effecting service after due identification. That too, was complied with as found by the learned trial judge in the end of paragraph 37. Thus, it is clear that the applicants/appellants were the same persons who were served with summons in the civil suit and they are trying to take undue advantage by changing their description illegally and in unauthorized maimer. Since the ex parte decree is found to have been passed after tendering the summons in due manner, no interference is warranted in the ex parte decree by virtue of the aforesaid proviso to Order 9, Rule 13 of Civil Procedure Code. 13. In the result, appeal is found to be meritless and the same is hereby dismissed. Since the appellants are found to have played mischief by wrongly representing them as wife and daughter of Shrikrishna Kasve, cost of Rs. 3000/-is saddled on them as exemplary' cost which shall be payable by them to the respondents within a month. Appeal dismissed