JUDGMENT : Being aggrieved by the order dated 18-11-2003 passed by District Judge, Ujjain, in Case No. 42/2002 (MJC), whereby application filed by Ramctiandra, predecessor-in-title of the appellants under Order 9 Rule 13, CPC for setting aside the judgment dated 24-7-95 passed in Civil Suit No. 18-A/89 was dismissed, present appeal has been filed. 2. Short facts of the case are that Kailash Narayan, predecessor-in-title of respondents filed a suit on 7-8-89 for declaration and possession of house alleging that house No. 5/222 situated at Bherugarh, Ujjain of which new house number is 1, 2, 3 and 4, Mahendra Marg, Lane No. 1, belongs to the respondent. It was alleged that in the year 1973 a part of the house fell down because of heavy rains. It was alleged that respondents are in occupation of the property since Samvat 1988. It was alleged that predecessor-in-title of the appellants has encroached over the property. It was prayed that decree of possession be passed. The suit proceeded ex parte vide order dated 4-10-89 against Ramchandra, predecessor-in-title of appellants and on 24-7-95 the decree was passed as prayed. Thereafter application under Order 9 Rule 13, CPC was filed on 24-11-2002, wherein it was prayed that appellants were never served. It was prayed that decree be set aside, the application was dismissed against which present appeal has been filed. 3. Vide interim order dated 15-7-2004 operation of the judgment and decree was stayed by this Court. 4. Learned Counsel for the appellants argued at length and submits that impugned order passed by the learned Trial Court is illegal, incorrect and deserves to be set aside. It is submitted that predecessor-in-title of the appellants was never served with summons of the Court. It is submitted that predecessor-in-title of the appellants came to know about the ex parte decree at the time when in execution respondents tried to take possession. 5. Learned Counsel for the appellants submit that the suit was filed by deceased Kailash Narayan, predecessor-in-title of respondents against predecessor-in-title of the appellants. It is submitted that the suit proceeded ex parte against Ramchandra predecessor-in-title of appellant w.e.f. 4-10-89. Kailash Narayan, who filed the suit also died during pendency of the suit and his L.Rs. were also brought on record by amending the plaint and ultimately suit was decreed on 16-7-95, i.e., after more than six years. It is submitted that the suit proceeded ex parte against Ramchandra predecessor-in-title of appellant w.e.f. 4-10-89. Kailash Narayan, who filed the suit also died during pendency of the suit and his L.Rs. were also brought on record by amending the plaint and ultimately suit was decreed on 16-7-95, i.e., after more than six years. It is submitted that thereafter also no execution petition was filed for number of years and only in the year 2002 the execution petition was filed, then only the appellants came to know about the existence of ex parte decree. 6. Learned Counsel placed reliance on a decision in the matter of Bhagmal Vs. Kunwar lal, reported in 2011 (I) MPJR (SC) 115, wherein plaintiff gave it to understand that he will withdraw the suit and plaintiff continued with the suit and ex parte decree passed in his favour. For setting aside the ex parte decree an application was filed within thirty days from the date of knowledge without filing separate application for condo nation of delay, wherein Hon'ble Apex Court observed that the application under Order IX Rule 13, CPC, itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice. Here was a party which bonafide believed the assurance given in-the compromise panchnama that the respondent No. 1/plaintiff would get his suit withdrawn or dismissed. The said compromise panchnama was made before the elders of the village. Writing was also effected, displaying that compromise. The witnesses were also examined. Under such circumstances, the non-attendance of the appellants/defendants, which was proved in the further proceedings, was quite justifiable. The appellants/defendants, when ultimately came to know about the decree, had moved the application within 30 days, which was sufficient. It was further observed that the limitation must be deemed t have started from the date when the appellants/defendants came to know about the decree on 22-6-88. An application under Order IX Rule 13 was filed within 30 days from that date and, therefore, it is clear that it was within time. At any rate, even if it held that the limitation started from the date of decree, there was a satisfactory explanation of the delay, if any. 7. Learned Counsel submits that apart from this the summons were also not served on the predecessor-in-title of the appellant. At any rate, even if it held that the limitation started from the date of decree, there was a satisfactory explanation of the delay, if any. 7. Learned Counsel submits that apart from this the summons were also not served on the predecessor-in-title of the appellant. For this contention reliance is placed in the matter of Satish Construction Co. Vs. Allahabad Bank, reported in 1998 (2) JLJ 344 , wherein summons of suit not properly served, it was held that ex parte decree could be set aside. Reliance is also placed on a decision in the matter of Suresh Kumar Vs. Godavaribai, reported in 1991 MPLJ 843 , wherein while taking into consideration Order V Rule 15, CPC, this Court held that service of summons can be made on the adult member of the family. Order V Rule 15 provides the existence of following conditions at the time of such service :- (i) That the defendant is absent from his residence at the time when the service of the summons is sought to be effected on him at his residence, (ii) That there is no likelihood of his being found at the residence within a reasonable time, (iii) That he has no agent empowered to accept service of the summons on his behalf. It is submitted that since none of the condition was in existence, therefore, on the ground of service of summons to the son, ex. parte decree obtained was deserves to be set aside. It is submitted that appeal be allowed and the impugned judgment be set aside. 8. Shri M.A. Bohra, learned Counsel for respondent, submits that after due appreciation of evidence learned Court below found that appellant was having full knowledge about the ex parte judgment and decree and the application for setting aside the ex parte decree was not in time. It is submitted that findings are based on facts on record, therefore, appeal be dismissed. 9. From perusal of the record, it is evident that suit for possession was filed by Kailash-Narayan predecessor-in-title of respondents on 7-8-89. The suit proceeded ex parte against Ramchandra predecessor-in-title of appellants w.e.f. 4-10-89 as appellant was treated served through his son Ravi. The service, which was effected on Ravi is on record, which goes to show that the notice was served on Ravi Trivedi, son of the deceased appellant. The suit proceeded ex parte against Ramchandra predecessor-in-title of appellants w.e.f. 4-10-89 as appellant was treated served through his son Ravi. The service, which was effected on Ravi is on record, which goes to show that the notice was served on Ravi Trivedi, son of the deceased appellant. There is overwriting in the date on which notice was served on Ravi Trivedi. The date of appearance in the summons is mentioned as 4-10-89. Below the signature of Ravi Trivedi date mentioned as it appears 9-10-89, thereafter there is an overwriting/interpolation and date is converted as 5-9-89. Apart from this from the report of the Process Server it is not evident that any of the conditions was existing for serving of summons on Ravi Trivedi instead of Ramchandra in whose name summons was issued as for serving the summon on the adult member of family, it is necessary that the defendant is absent from his residence and there is no likelihood of being found at the residence within reasonable time and also he has no agent to empower service of summon on his behalf. In the facts and circumstances of the case, this Court is of the view that learned Court below committed error in dismissing the application filed by the appellant. In view of this appeal filed by the appellant is allowed and the impugned judgment dated 18-1-2003 passed in Case No. 42/2002 MJC and also judgment dated 24-7-95 passed in Civil Suit No. 18-A/89 is set aside with a direction the learned Court below to proceed with the case in accordance with law. Parties are directed to remain present before the learned Court below on 12-9-2011. 10. With the aforesaid observations appeal stands disposed of.