JUDGMENT Dinesh Gupta, J. 1. This Civil Misc. Writ Petition is filed for the following reliefs: - Issue a writ, order or direction in the nature of certiorari summon the record and quash the impugned order dated 12.08.2013 passed by Additional District Judge, Court No. 7, Muzaffar Nagar in Civil Revision No. 219 of 2012 Mohd. Azmal Vs. Smt. Anita Jain. Issue a writ order or direction in the nature of certiorari quash the impugned order dated 01.12.2012 passed by Civil Judge (Senior Division) Muzaffar Nagar in Misc. Case No. 73 of 2012 "Smt. Anita Jain Vs. Mohd. Azmal and others." Issue a writ order or direction in the nature of mandamus further stay the further proceedings of Misc. Case No. 73 of 2012 (Under order 9, Rule 13 C.P.C.) Smt. Anita Jain Vs. Mohd. Azmal and others: - arising out of O.S. No. 432 of 2006 "Mohd. Azmal Vs. Anis Parvez and others" - pending in the Court of Civil Judge (Senior Division), Muzaffar Nagar during the pendency of the present Writ Petition before this Hon'ble Court. 2. The brief facts which give rise to this petition are that the petitioner filed a Suit through next friend for cancellation of sale deed alleged to have been executed by one Soib elder brother of the petitioner in respect of agricultural land not only of his own share but also of share of petitioner. 3. During the pendency of the Suit although there was an injunction restraining the defendants from executing sale deed in favour of any other person, the defendant executed sale deed in favour one Anita Jain. Thereafter on getting knowledge of the impugned sale deed in favour of Anita Jain, petitioner moved an application for impleadment of Smt. Anita Jain which was allowed and Smt. Anita Jain was impleaded as respondent no. 1. Then the petitioner tried his level best to serve the notices of the suit upon the respondent no. 1 Smt. Anita Jain (hereinafter called respondent no. 1) and when all attempts failed, with the direction of the Court, the notices were sent for publication in a newspaper and the notices were published in the newspaper. Although the notices were published properly in the newspaper there was some factual mistake and a corrigendum was also published in the newspaper in respect of the publication of the notices, the respondent no. Although the notices were published properly in the newspaper there was some factual mistake and a corrigendum was also published in the newspaper in respect of the publication of the notices, the respondent no. 1 did not put in appearance and the court proceeded ex parte against them and ultimately an ex parte decree was passed on 16.07.2008. 4. That application under Order IX Rule 13 C.P.C. was moved on 27.08.2010 by respondent no. 1 which was registered as Misc. Case No. 73 of 2010. In the application the respondent submitted that notices sent by process server or registered post were never served upon her and the petitioner has not impleaded the executant of sale deed his elder brother Soib in the Suit. Further the publication of notices in the newspaper were defective. Initially the publication was made in newspaper 'Dainik Manav Jagat'. However, in the said publication the name of respondent no. 1 was not shown. Thereafter again a notice was published in 'Dainik Muzaffarnanagar Ujala' in which complete address of respondent no. 1 was not shown and further O.S. number was also shown as 632 of 2006. Thus the address shown in the publication was incomplete. In fact the address of respondent no. 1 was 124C New Mandi and the address shown in the publication was incomplete. Further a corrigendum was issued and published in the newspaper and only corrigendum is published that in place O.S. No. 432 wrongly published O.S. No. 632. When publishing this corrigendum again there was a mistake that in place of 432 of 2006 again O.S. is shown as 432 of 2007. The respondent no. 1 had no knowledge regarding this publication and on the basis of this publication the Court decreed the Suit on 16.07.2008. It was only on 22.08.2010 the husband of respondent heard in the village regarding the cancellation of sale deed and thereafter he immediately contacted his counsel who after inspecting the file told the husband of the respondent that the Suit has been decreed ex parte. Thereafter this application under Order IX Rule 13 CPC was moved on 27.08.2010. In the said application the respondent also stated that although the application is within limitation from the date of knowledge and she had no knowledge regarding the ex parte decree prior to 23.08.2010. Thereafter this application under Order IX Rule 13 CPC was moved on 27.08.2010. In the said application the respondent also stated that although the application is within limitation from the date of knowledge and she had no knowledge regarding the ex parte decree prior to 23.08.2010. However, if in the opinion of the Court there was any delay in moving the application, the application should also be given benefit of section 5 of Limitation Act. 5. The petitioner filed objections and stated that the respondent has complete knowledge of the pendency of the Suit. Initially the Suit was filed against respondent no. 2 and 3 and when in spite of the injunction order, respondent no. 2 and 3 executed the sale deed in favour of respondent no. 1, the respondent no. 1 was also impleaded in the Suit and when the respondent no. 1 malafidely refused to accept the notices, the notice was published in the newspaper and the Court decreed the Suit considering the services of notices on the respondent no. 1 sufficient. 6. Thereafter this application has been moved after a lapse of more than 2 years and no application under section 5 Limitation Act appended with this application which was mandatory. 7. The trial Court/Civil Judge Junior Division Muzaffarnagar allowed the Misc. Case No. 73 of 2010 and set aside the ex parte decree dated 16.07.2008 on payment of cost of Rs.500/-. 8. Feeling aggrieved, the petitioner filed Civil Revision before learned District Judge, which was registered as Civil Revision No. 219 of 2012 and transferred to the Court of Additional District Judge, who dismissed the revision vide his order dated 12.08.2013. 9. Feeling aggrieved, the petitioner filed this petition. 10. Heard learned counsel for the petitioner. Respondent no. 1 also put in appearance through caveator. She was also heard. 11. Learned counsel for the petitioner submitted that : - Both the impugned orders passed by the courts below are absolutely illegal, arbitrary and hence deserves to be set aside. The trial court failed to record any finding regarding non filing of delay condonation application where as the petitioner specifically raised this question through his objections. The trial court also failed to consider the fact that the application under order IX Rule 13 was not maintainable without supported by any delay condonation application. The trial court failed to record any finding regarding non filing of delay condonation application where as the petitioner specifically raised this question through his objections. The trial court also failed to consider the fact that the application under order IX Rule 13 was not maintainable without supported by any delay condonation application. That the Revisional court has completely failed to consider that the court below after deeming the service of the notice sufficient on the respondent no. 1. proceeded ex parte against the respondent and ultimately decreed the suit. That the revisional court also committed illegality in not considering the case laws submitted by the petitioners. That without application under section 5 Limitation Act, the application under Order IX Rule 13 is not maintainable. 12. The Revisional court also illegally held that application under Order IX Rule 13 was accepted on the basis of averment made by the respondent no. 1 in her application while there was no prayer by the respondent for condoning the delay in moving the application in support of her case. He cited a bundle of cases although some of the case are not relevant. They are mentioned hereunder: - i.2012 (117) RD 416 Allahabad High Court Shambhu Sharan Chaubey and others Vs. State of U.P. Through Collector Padrauna and another. ii.AIR 2008 (NOC) 2087 Chhagan Lal @ Chhagan Mal and Anr. V. Suresh Chauhan & Ors. iii.AIR 2008 (NOC) 2737 (Cal.) Smt. Gouri Basu V. Durga Nath Bhattacharjee iv.2012 (116) RD 167 Office of Chief Post Master General and others Vs. Living Media India Ltd. and another v.2000(91) RD Page 689 (Supreme Court) Ragho Singh Vs. Mohan Singh and others. vi. (2008) 14 SCC 445 Noharlal Verma Vs. District Cooperative Central Bank Limited, Jagdalpur. vii. (2006) 1 SCC 164 Haryana Urban Development Authority Vs. B. K. Sood. viii. (2009) 6 SCC 194 Sneh Gupta Vs. Devi Sarup and others. 13. Learned counsel for the respondent (caveator) submitted that the application under Order IX Rule 13 C.P.C. was filed by the respondent no. 1 within 30 days the limitation provided for setting aside the ex parte decree from the date of knowledge of ex parte decree. The counsel further submitted that for the first time the husband of the respondent no. 1 came to know regarding the ex parte decree on 22.08.2010 and this application is moved immediately on 27.08.2010. 1 within 30 days the limitation provided for setting aside the ex parte decree from the date of knowledge of ex parte decree. The counsel further submitted that for the first time the husband of the respondent no. 1 came to know regarding the ex parte decree on 22.08.2010 and this application is moved immediately on 27.08.2010. Further the counsel reiterated the allegations made in the application under Order IX Rule 13 and submitted that there was mistake in publication in the newspaper, the residential address of the respondent no. 1 as well as the description of the Suit and thus in the eye of law there was no service of notices and the respondent has moved the application for setting aside ex parte decree only on getting knowledge of ex parte decree on 22.07.2008. The counsel further submitted that the order passed by both the courts below are perfectly legal and the court has jurisdiction to pass the said order and no interference is required under Article 226 at this stag. In support of his contention, the counsel relied upon the following case laws: - (a) 2012 (6) AWC 5884 Balram Pandey Vs. Board of Revenue U.P. at Allahabad and others. (b) 2012 (5) AWC 4468 Chandra Pal and another Vs. State of U.P. and others. 14. I am unable to accept the contention raised by learned counsel for the petitioner for setting aside an ex parte decree. The provisions given in Civil Procedure Code under Order 9 Rule 13 reads as under: - Setting aside decree ex parte 13. (b) 2012 (5) AWC 4468 Chandra Pal and another Vs. State of U.P. and others. 14. I am unable to accept the contention raised by learned counsel for the petitioner for setting aside an ex parte decree. The provisions given in Civil Procedure Code under Order 9 Rule 13 reads as under: - Setting aside decree ex parte 13. Setting aside decree ex parte against defendants.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: 1[Provided further that no Court shall set aside a 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.] 2[Explanation.- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application s hall lie under this rule for setting aside the ex parte decree.] HIGH COURT AMENDMENTS Allahabad.- In Order IX, in rule 13, after second proviso, insert the following proviso namely.- "Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the Court is satisfied that the defendant knew, but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim." [Vide Notification No. 4084/35(a)(7), dated 24th July, 1926.] 15. Further so far limitation is provided under Article 123 of the Schedule of the Limitation Act 1963 which provides a period of 30 days for filing an application for setting aside an ex parte decree from the date of decree or its knowledge where the summons or notice was not duly served. 16.From the bare perusal of the provisions of Order IX, Rule 13, two instances provided to set aside the ex parte decree. The defendant may apply to the Court to set aside the decree if he satisfies the court that the summon was not duly served or that he was prevented by any sufficient cause from appearing when the Suit was called for hearing. The application filed by the respondent no. 1 comes within the ambit of first provision which provided that the decree can be set aside if the summons were not duly served. In addition to this provision the limitation Act also provides two conditions, a period of 30 days is granted to move set aside decree from the date of knowledge of the decree and from the date of knowledge of the decree where the summons or notice was not duly served. In the present case, the respondent no. 1 has come up with this case that she has no knowledge of the decree and only for the first time she came to know about the knowledge of the decree and admittedly this application was moved within 30 days of the knowledge of the decree and admittedly this application was moved within thirty days of the knowledge of the decree. A period of limitation of 30 days will start running from the date of the decree or from the date of knowledge of the decree when the notices were not properly served. In the present case, the respondent come up with this specific case that notices were not served upon her properly. The trial court and the revisional court considered this factual aspect and come to the conclusion that the notices were not served upon the petitioner either by process server or by registered post. Thereafter the court has taken the recourse of publication. The respondent has contended in his application that the address shown in the publication was wrong and the description of the original suit was also incorrect. The petitioner in his objections has not denied these mistakes in the publication. Thereafter the court has taken the recourse of publication. The respondent has contended in his application that the address shown in the publication was wrong and the description of the original suit was also incorrect. The petitioner in his objections has not denied these mistakes in the publication. Certainly the description of the Suit and the wrong mentioning of the address in the publication is no service of the notice in the eye of law. Therefore, the case of the respondent no. 1 falls in the second clause where the limitation runs from the date of the knowledge of the decree where the summons were not properly served and admittedly the application is within thirty days from the date of knowledge. Even if for the argument's sake as contended by the petitioner that there was delay in moving the application and a delay condonation application should be filed. In this context it is necessary to consider the averment mentioned in the application moved by the respondent under Order IX Rule 13, where the respondent has clearly averred that although there was no delay in filing the application, even if in the opinion of the Court the application is barred by time, she should be given the benefit of Section 5 of Limitation Act. Thus the whole objections of the petitioner goes in vain when the respondent no. 1 in her application under Order IX, Rule 13 clearly mentioned for taking the benefit of Section 5 Limitation Act. There is no hard or fast manner in which Section 5 Limitation Act application should be filed. A request or averment in the application for granting benefit of Section 5 is sufficient compliance and thus the trial court as well as revisional court has not committed any illegality in allowing the application of the respondent under Order IX Rule 13 CPC. The series of the judgements relied upon by the petitioner only reflect that the prayer under section 5 Limitation Act should also be made in case the application is barred by time. In the present case this prayer is also mentioned in the application itself. It is not necessary to file application under Section 5 Limitation Act for condoning delay separately. 17. In view of the above discussion the petition lacks merit and deserves to be dismissed. 18. Accordingly, it is dismissed.