JUDGMENT Sanjay K. Agrawal, J. 1. The appellant/judgment debtor-defendant has preferred this appeal under Order 43, Rule 1, Clause (d) of the Code of Civil Procedure, questioning the legality, validity and correctness of the order dated 17-8-2006, passed by the 11th Additional District Judge (FTC), Durg in M.J.C. No. 5 of 2005, by which his application under Order 9, Rule 13 of the C.P.C. for setting aside of the ex parte judgment and decree dated 21-10-2002 in Civil Suit No. 25-A/2001, has been rejected. The necessary facts, required for adjudication of the instant appeal are as under: 2.1 The plaintiff/respondent (Mahesh Chandra Pal) filed a suit for eviction and arrears of rent on 17-8-2001 against the sole defendant (Moti Chand Jain). During the pendency of this appeal, Moti Chand Jain died and now Smt. Bhouri Bai Jain (Nahata) represents him. 2.2 The suit for eviction and arrears of rent was filed stating inter aha on the ground of 12(1)(a), 12(1)(e) and 12(1)(h) of the Chhattisgarh Accommodation Control Act, 1961, which was registered as Civil Suit No. 25-A/2001. The trial Court issued summons to the defendant on 24-8-2001 for his appearance before the Court on 2-11-2001. It is alleged that on 9-10-2001 the process server reached to the house of the appellant/defendant and finding the appellant/defendant not available, handed over a copy of the summons along with plaint to the defendant's wife which she refused to accept. It was further alleged that a copy of the summons along with copy of the plaint was affixed in the house of the defendant and the report of summons was submitted before the Court that the defendant's wife has refused to accept the summons issued by the Court. 2.3 The trial Court on 2-11-2001 directed that the affidavit of the process server be called, which was filed on 2-11-2001. The trial Court recorded that the affidavit of the process server is that wife of the defendant had refused to accept the summons and since he was not present, therefore, the trial Court proceeded ex parte. The trial Court recorded a statement of the plaintiff and his witnesses and thereafter ex parte decree was passed on 21-10-2002 for eviction and arrears of rent which was ultimately executed on 10-4-2003 and the possession of the suit house was taken by the respondent/plaintiff from the appellant/defendant. The trial Court recorded a statement of the plaintiff and his witnesses and thereafter ex parte decree was passed on 21-10-2002 for eviction and arrears of rent which was ultimately executed on 10-4-2003 and the possession of the suit house was taken by the respondent/plaintiff from the appellant/defendant. 2.4 Thereafter, the appellant filed an application under Order 9, Rule 13 of the C.P.C. for setting aside of the ex parte decree dated 21-10-2002 stating inter alia that he was not duly served in the Civil Suit No. 25-A/2001 as the process server never came to his place for serving notice and therefore he could not appear when the suit was called for hearing. He further submitted that on being come to know about the impugned judgment and decree he enquired the matter on 16-4-2003 and upon coming to know about passing of the judgment and decree filed an application for setting aside of the ex parte judgment and decree on 17-8-2003 along with an affidavit within 30 days from the date of the knowledge of the decree from 10-4-2003/16-4-2003 from the date of execution of the decree, which is a period of limitation as prescribed by Article 123 of the Indian Limitation Act, 1963. The appellant/defendant also filed an application under Section 5 of the Indian Limitation Act, 1963, pleading inter alia that at the first time he came to know about the impugned judgment on 16-4-2003 and thereafter he filed the application on 17-4-2003 which is within limitation and therefore the plaintiff having not duly served the judgment and decree is liable to be set aside. 2.5 The plaintiff filed reply of the said application while opposing the said application it was pleaded that the summons was duly served on the defendant's wife, which she had deliberately refused to accept the summon and therefore the trial Court has rightly passed the ex parte decree against him and also opposed the application for condonation of delay in filing the appeal. 2. 2. Shri Paramod Verma, learned Senior Counsel, heavily assisted by Shri Virendra Verma, learned counsel for the appellant firstly submits that the summons was not duly served to the defendant for the reasons that the procedure prescribed under Order 5, Rule 17 of the C.P.C. has not been followed by the process server as the report of the process server nowhere records as to how the house of the defendant was identified by him. It also did not record that in whose presence the wife of the appellant defendant refused to accept the summons issued by the Court. He further submits that the affidavit allegedly filed by the process server before the Court is not in conformity with the requirement of law, particularly the Form No. 11 of the Appendix-B of the Code of C.P.C. and finally submits that the Court while holding that the summons was duly served has not made any enquiry as provided under Order 5, Rule 19 of the C.P.C. While concluding his submission, learned Senior counsel finally submits that no declaration as envisaged under Order 5, Rule 17 has been made and no judicial order whether the summons is duly served or not has been recorded by the trial Court, which is mandatory in nature and not declaring that the summons is duly served after making an enquiry by judicial order the trial Court has committed grave legal error in holding that summons was duly served and thereby proceeding ex parte and passing ex parte decree is absolutely illegal and liable to be set aside. 3. Per contra, Shri C.R. Sahu, learned counsel for the plaintiff/respondent while replying the submissions made by learned counsel for the appellant, supports the order passed by the trial Court rejecting the application under O. 9, R. 13 of the C.P.C. and submits that the defendant's wife has consciously and deliberately refused to accept the summons issued by the trial Court. Therefore, the trial Court called the affidavit of the process server and after satisfying that the summons was refused, proceeded ex parte and ultimately that culminated into passing of the ex parte judgment and decree. 4. I have heard learned counsel for the parties and considered the rival submissions made therein and also perused the original record. 5. Therefore, the trial Court called the affidavit of the process server and after satisfying that the summons was refused, proceeded ex parte and ultimately that culminated into passing of the ex parte judgment and decree. 4. I have heard learned counsel for the parties and considered the rival submissions made therein and also perused the original record. 5. A bare perusal of the Order 5, Rule 17 obliges the process server to submit a 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, where the defendant or his agent or such other person refuses to sign the acknowledgment or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, 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 with a report. 6. I have carefully gone through the report of the process server, which was returned to the Court. A bare perusal would show that the process server has only recorded that on being enquired, the defendant was not available but her wife refused to accept the summons and therefore he affixed the copy at the outer door of his house. The process server did not submit any report about the name and addresses of the witnesses, how and in whose presence and by whom the house was identified and in whose presence the copy was affixed. It simply records that the defendant's wife refused to accept the summons and thereafter he affixed the copy at the door and submitted report to the trial Court and thereafter the affidavit was also submitted. The important aspect of the matter is that once the process server makes a report and once he found that the defendant's wife refused to accept the summons, even then he had not recorded in whose presence the copy was affixed. 7. The important aspect of the matter is that once the process server makes a report and once he found that the defendant's wife refused to accept the summons, even then he had not recorded in whose presence the copy was affixed. 7. Though the trial Court by order dated 2-11-2001 directed and ultimately the affidavit was filed by the process server but the fact remains that in the report the requirement of Order 5, Rule 17 itself is lacking in the vital aspect of the matter particularly the name and addresses of the person by whom the house was identified and in whose presence the copy was affixed. 8. In a decision reported in Ashok Kumar Sahu vs. Madhusudan, 2007 (1) Cg LJ 314 in the similar situation where the provisions of Order 5, Rule 17 of the C.P.C. were not complied with while submitting report by the process server, this Court has set aside the ex parte decree and held in para 7 as under: 7. Having considered the rival submissions, I have perused the record of Civil Suit No. 44-B/2003 and also the record of Misc. Judicial Case No. 17 of 2004, the testimony of the Process Server Kewal Das and the summons of the defendant issued for 15-11-2004 and the report of service by affixture written by Process Server Kewal Das. The report of Process Server on the summons does not give any detail as to the person who identified the house of the defendant and his wife Kuleshwari and also does not reveal the name of the lady who refused service of notice. The report of Process Server also shows that it has been signed by a witness namely Surendra, who was not examined by the plaintiff/ respondent. Process Server Kewal Das, in his testimony in paragraph 3, stated that the name of the person who was present at the time of service by affixture was perhaps Deepak Kumar. Paragraph 4 of the testimony of the Process Server also shows that once neighbouring lady had identified the wife of the defendant. However, the name of that lady was not mentioned by the process server in his report as mandated by Order 5, Rule 18, C.P.C. In paragraph 5, the process server also deposed that he came with the plaintiff-decree-holder to the Court and had snacks with him in the hotel. However, the name of that lady was not mentioned by the process server in his report as mandated by Order 5, Rule 18, C.P.C. In paragraph 5, the process server also deposed that he came with the plaintiff-decree-holder to the Court and had snacks with him in the hotel. He also admitted that he did not make any payment for the snacks. 9. In a decision reported in Kunja vs. Lalaram and Others, 1987 MPU 746: AIR 1987 MP 252 , where the summons was held to be not duly served and no juridical order was passed, High Court of M.P. following that the Rule 17 or Order 5 of C.P.C. is mandatory, has held in para-5 as under: 5. I have no hesitation to take the view that the provisions of Rule 19 aforequoted are mandatory in real sense of the term and that it casts a duty on the Court to make a judicial order while accepting service effected in the manner prescribed under Rule 17 or Order 5, Civil Procedure Code. I say so because the legislature requires the Court that it "shall either declare that the summons has been duly served or order such service as it thinks fit." Because also, the legislature vests jurisdiction in the Court to examine the serving officer even when his report is supported by an affidavit. That the discretion has been duly and judicially exercised even to refuse to examine the serving officer in such a case must be manifested in the order passed under Rule 19 of Order 5, Civil Procedure Code, accepting service thereunder. Any other view, I have no hesitation to say at once, will cause serious injustice to moneyless and numberless litigants in this poor country where justice has to be purchased at a very high price. I must heed the mandate of Art. 39A of the Constitution to so declare emphatically in unambiguous terms despite my attention being drawn to a decision of a single Judge in Chandansingh, 1969 MPLJ (Note) 21. With due respect, I humbly beg to differ as the view taken by his Lordship does not accord with the constitutional mandate. I find it difficult to accept the proposition that the report (endorsement or the affidavit) of the process server is sacrosanct. With due respect, I humbly beg to differ as the view taken by his Lordship does not accord with the constitutional mandate. I find it difficult to accept the proposition that the report (endorsement or the affidavit) of the process server is sacrosanct. If that had been the position, the legislature would not have invested the Court to exercise discretion in the matter of examining the process server by which a valuable right has been created in the aggrieved person to contest validity of service; because his vital right to be heard in the case could be impaired immeasurably with this object it has made the provision. In any case, his Lordship was not called upon to expound on the ambit and scope of R. 19, directly in issue in this case, though he spoke of Rule 18. The decision, therefore, is distinguishable on facts. 10. In a decision reported in Baijnath Mishrilal Kachhi vs. Harishanker s/o Mishrilal and Others, 2001 (2) MPLJ 142 . High Court of M.P. while dealing with the identical issue held that in the case of refusal of service of summons, when the same has been affixed in presence of witnesses and report has been endorsed, it has also to be reported as to who identified the house of the defendant and the name of the person who identified the name of the defendant has to be mentioned, in para 15 has held as under: 15. It is therefore, clear that in case of refusal of service of summons, the same has to be affixed in the presence of the witnesses and a report has to be endorsed by the process server in that regard. It has also to be reported by the process server, as to who identified the house of the defendant and he should also mention the names of persons in whose presence the copy of summons was affixed, on the refusal to receive the summons by the defendant. 11. It has also to be reported by the process server, as to who identified the house of the defendant and he should also mention the names of persons in whose presence the copy of summons was affixed, on the refusal to receive the summons by the defendant. 11. The Order 5, Rule 19 provides for examination of serving officer, where a summons is returned under R. 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit. 12. Though in the instant case affidavit was filed before the Court but according to him it was obligatory on the part of the trial Court to examine the process server before accepting service report of the process server as duly served because the report of the process server in this case is a report which lacks procedural requirements to be mentioned by Order 5, Rule 17 of C.P.C., particularly, the process server has not stated firstly, who has identified the house of the defendant, secondly, in whose presence the copy of summons was affixed in the house of the defendant and particularly, when the defendant himself was not present in the house and the summons was alleged to have been served on the defendant's wife, to whom the process server did not personally know. Thus, the trial Court has committed legal error in not examining the process server before proceeding ex parte against the defendant on the basis of the report followed by an affidavit which was a report, not in accordance with the requirement of Order 5, Rule 17 of C.P.C. 13. Apart from this the trial Court has committed further legal error by proceeding ex parte against the appellant/defendant on 4-12-2001, which reads as under: (Vernacular matter is omitted -- Ed.) 14. Apart from this the trial Court has committed further legal error by proceeding ex parte against the appellant/defendant on 4-12-2001, which reads as under: (Vernacular matter is omitted -- Ed.) 14. A bare perusal of the aforesaid order dated 4-12-2001 would show that there was no due compliance of the provisions of Rule 19 of Order 5, C.P.C. It simply records that the affidavit of the process server states that the defendant's wife had refused to accept the summons issued by the Court and report has been produced. Since no one is present from the side of the defendant, therefore ex parte proceedings were drawn. 15. The provisions of Order 5, Rule 19, C.P.C. are mandatory in real sense of the terms and it casts a duty on the Court to pass a judicial order in the manner provided in Rule 17 and 19 of Order 5 of the C.P.C. because the legislature has required the Court that it shall either declare that the summons has been duly served or the order of service as it thinks fit. It is also clear from the fact that even if the summons report is submitted along with affidavit then also the Court can examine the process server to find out as to whether the summons is duly served or not. It must appear from the perusal of the order declaring summons has been duly served. The trial Court should have passed a judicial order in this respect, applying judicial mind before a declaring that the summons is duly served as in other view it would cause serious injustice to the other party, which has been proceeded ex parte and ultimately suffer an ex parte decree. Therefore, I hold that the trial Court has committed serious legal error in proceeding ex parte against the defendant holding that summons was duly served without making any enquiry as to whether the defendant was duly served or not taking recourse to Rule 19 of Order 5 of C.P.C. and even it did not come in the order sheet dated 4-12-2001 and it does not reflect any application of judicial mind to declare that the summons is duly served. As such, I find force in the submissions of learned counsel for the appellant that while proceeding ex parte the trial Court has committed serious legal error and thereafter passing ex parte judgment and decree against the appellant/defendant. As such, I find force in the submissions of learned counsel for the appellant that while proceeding ex parte the trial Court has committed serious legal error and thereafter passing ex parte judgment and decree against the appellant/defendant. 16. The next contention raised by Shri C.R. Sahu, learned counsel for the respondent/ plaintiff is that the appellant/defendant was duly served on 9-10-2001 and therefore the application for setting aside of the ex parte decree filed on 17-4-2003 was beyond the period of limitation of 30 days as prescribed under Article 123 of the Limitation Act, 1963. 17. Article 123 prescribes as under: 123. To set aside a decree passed 18. A bare perusal of Article 123 would show that the period of 30 days prescribe to set aside the decree ex parte and the time from which the period begins to run 30 days is the date of decree and where summons or notice is not duly served then thirty days from the date of knowledge of decree. 19. In the foregoing paragraph, I have already dealt with the summons of Civil Suit No. 25-A/2001 not duly served on the appellant/defendant and the period of limitation as prescribed in Article 123 of the Limitation Act, 1963 would apply from the date when the appellant/defendant got the knowledge of the decree. In the instant case the appellant/ defendant has clearly mentioned in his statement recorded before the trial Court that the decree was duly executed on 10-4-2003 and upon enquiry made by him on 16-4-2003 by engaging a lawyer he got the knowledge of the fact that ex parte decree was passed and accordingly the application for setting aside of the ex parte decree was filed on 17-4-2003. Thus the date of knowledge is 10-4-2003 when the ex parte decree was executed and application for setting aside of the ex parte decree along with application for condonation of delay, if any, was filed on 17-4-2003, therefore the application was rightly filed within the period of limitation. 20. Thus the date of knowledge is 10-4-2003 when the ex parte decree was executed and application for setting aside of the ex parte decree along with application for condonation of delay, if any, was filed on 17-4-2003, therefore the application was rightly filed within the period of limitation. 20. Thus, in the instant case, the trial Court has not made any enquiry regarding service of summons on the appellant/defendant and refusal of the summons reported by the serving officer without containing the requirement as indicated in Order 5, Rule 17 of C.P.C. and hence the mandatory requirement of Order 5, Rule 17 of C.P.C. have not been complied with and the ex parte decree dated 21-10-2002, passed in Civil Suit No. 25-A/2001 cannot sustain and liable to be set aside. 21. Likewise the impugned order dated 17-8-2005 passed by the trial Court in M.J.C. No. 5/05, rejecting the defendant's application under Order 9, Rule 13, C.P.C. as well as rejecting the application under Section 5 of the Limitation Act cannot sustain and both the orders are hereby set aside, holding that the summons was not duly served on the defendant in Civil Suit No. 25-A/2001. 22. Resultantly, the impugned order is set aside, the application of the appellant/ defendant under Order 9, Rule 13, C.P.C. is allowed, ex parte judgment and decree is set aside and the Civil Suit No. 25-A/2001 is restored to the file of the trial Court for hearing and disposal in accordance with law. 23. It stands established on record that the decree for possession granted by the trial Court was executed on 10-4-2003 and possession was delivered to the respondent/plaintiff. Considering the fact that the appellant/defendant is tenant and the respondent/plaintiff, the landlord is in possession of the suit house since 10-4-2003, it is directed that upon grant of this appeal the appellant/defendant would not be entitled for restitution of possession, However, the trial Court will decide the suit expeditiously. No order as to costs. Petition allowed.