Oral Judgment: 1. The appeal is filed by the judgment-debtor challenging the judgment and decree passed by the trial Court for Rs.24,46,74096 paise with interest at 18% per annum. 2. The respondent No.1-Maharashtra State Electricity Board had filed the suit for recovery of Rs.24,46,74096 paise towards recovery of arrears of charges for supply of energy, minimum charges for unexpired period for agreement etc. During the pendency of the proceedings, the Maharashtra State Electricity Board came to be reconstituted and accordingly its name was substituted by the 'Maharashtra State Electricity Distribution Company Limited' in the cause title of the appeal. The civil suit was filed against the respondent No.2-Company and the respondent No.3. The respondent No.3/defendant No.2 had filed an application stating that the Directors of the respondent No.2-Company were necessary parties to the civil suit. In view of the submission made on behalf of the respondent No.3/defendant No.2, the original plaintiff filed application for impleading the additional parties whose names were supplied by the respondent No.3/defendant No.2. The appellant was also impleaded as the defendant No.4 in the civil suit. 3. According to the appellant, he was not served with the summons of the civil suit and he was not aware about the pendency of the civil suit and he got knowledge about it in the execution proceedings. After getting knowledge about the ex parte decree passed against him, the appellant obtained the certified copy of the judgment and decree and filed an objection under Section 47 of the Code of Civil Procedure, on 18-01-2010. The appellant also filed this appeal challenging the judgment and decree passed by the trial Court. There was delay in filing the appeal and therefore, an application praying for condonation of delay in filing the appeal was also filed. The case of the appellant is that he was not served with the summons of the civil suit and he was not having knowledge about the pendency of the civil suit and about the judgment and decree passed by the trial Court and he got knowledge about the fact that ex parte judgment and decree is passed against him, in first week of September 2009 and also got information that the execution proceedings were pending before the Executing Court and were fixed for 09-09-2009. According to the appellant, there was delay of 158 days in filing the appeal. The delay in filing the appeal is condoned. According to the appellant, there was delay of 158 days in filing the appeal. The delay in filing the appeal is condoned. While hearing the application praying for condonation of delay, one of the issue which fell for consideration was regarding the service of suit summons on the appellant. The respondent No.1/decree-holder contended that the appellant was served with the suit summons and therefore, the limitation for filing the appeal has to be considered from the date of the judgment and decree i.e. 13-10-2003 and not from first week of September, 2009, as stated by the appellant. While deciding the application praying for condonation of delay, it is held that the suit summons was not served on the appellant and therefore, the delay in filing the appeal was of 158 days and the delay is condoned. As the issue regarding service of suit summons is dealt with while deciding the application praying for condonation of delay, with the consent of the learned Advocates for the contesting parties, the appeal is taken up for final disposal. 4. Shri S.P. Dharmadhikari, the learned Senior Advocate assisted by Shri S.A. Dharmadhikari, Advocate for the appellant has submitted that the appellant was not party to civil suit from the inception and came to be impleaded as the defendant No.4 in the civil suit on the objection raised by the original defendant No.2. It is submitted that even according to the respondent No.1/original plaintiff, the suit summons was pasted on the notice board of the Yashvantrao Chauhan College of Engineering, Wanadongari, Nagpur where he was working as Lecturer till 1988. It is submitted that the suit summons was pasted on the notice board of the College on 09-03-1994 and at that time he was not working in the College. It is submitted that fresh summons were issued on 16-06-1994, 15-12-1995, 20-01-1996, 27-02-1996, 27-03-1996, 30-04-1996, 30-11-1996 and 30-12-1996, however it cannot be ascertained as to how the suit summons was served on the appellant. The learned Senior Advocate has submitted that the record does not show that the service of suit summons was according to the mandatory provisions of Order V Rule 17 and Order V Rule 19 (before amendment) of the Code of Civil Procedure. The learned Senior Advocate has submitted that the record does not show that the service of suit summons was according to the mandatory provisions of Order V Rule 17 and Order V Rule 19 (before amendment) of the Code of Civil Procedure. It is submitted that the impugned judgment is passed without there being proper and valid service on the appellant and therefore, the impugned judgment and decree is unsustainable in law and it has to be set aside. 5. Shri S.V. Purohit, the learned Advocate for the respondent No.1/original plaintiff has raised preliminary objection to the maintainability of the appeal on the ground that the appellant has filed an application under Order IX Rule 13 of the Code of Civil Procedure and the appellant cannot be permitted to prosecute two different remedies simultaneously for the same relief. The learned Advocate has submitted that the suit summons was properly served on the appellant and the learned trial Judge had rightly passed an order to proceed ex parte against the appellant because of his failure to appear in the proceedings. It is submitted that huge amount of the respondent No.1/plaintiff is to be recovered and the appellant and the other judgment-debtors are protracting the litigation and creating hurdles in the recovery of the amount which is towards supply of energy/electricity. It is submitted that the appeal be dismissed with costs. 6. Shri S.P. Dharmadhikari, the learned Senior Advocate, in reply, has submitted that the appellant is entitled to prosecute the application under Order IX Rule 13 of the Civil Procedure Code and simultaneously prosecute the appeal also. In support of the submission, reliance is placed on the judgment given by the Hon'ble Supreme Court in the case of Bhanu Kumar Jain vs. Archana Kumar and Another reported in (2005) 1 SCC 787 . The learned Senior Advocate has submitted that the appellant cannot be made liable to pay the decretal amount without being given an opportunity to defend himself. It is submitted that the appellant had resigned as the Director of the respondent No.2-Company much earlier and the bills for supply of electricity for recovery of which civil suit was filed are for the subsequent period. It is submitted that the appellant had resigned as the Director of the respondent No.2-Company much earlier and the bills for supply of electricity for recovery of which civil suit was filed are for the subsequent period. Shri S.P. Dharmadhikari, the learned Senior Advocate has submitted, on instructions, that if the appeal is allowed and the matter is remitted to the trial Court for deciding the civil suit afresh after giving an opportunity to the appellant to defend himself, the appellant undertakes to deposit Rs.12,50,000/- and in addition to furnish bank guarantee for Rs.25,00,000/- to show his bonafides. 7. After hearing the learned Advocates for the respective parties, the following points arise for consideration: i) Whether the appellant can prosecute the appeal in addition to the application filed by him under Order IX Rule 13 of the Code of Civil Procedure? ii) Whether the judgment and decree passed by the trial Court against the appellant is sustainable in law ? 8. The issue about the maintainability of the appeal filed by the appellant simultaneously while prosecuting the application under Order IX Rule 13 of the Code of the Civil Procedure is covered by the judgment given by the Hon'ble Supreme Court in the case of Bhanu Kumar Jain vs. Archana Kumar and another reported in 2005(1) SCC 787 . Accordingly, it is held that the appeal filed by the appellant is maintainable. 9. The submission on behalf of the appellant is that the suit summons was not properly and legally served on him. It is submitted that even if the contentions of the respondent No.1/decree-holder about the service of suit summons on the appellant are to be considered, the record shows that the summons was pasted on the notice board of the College where the appellant was working earlier and was not working in the College in 1994 and onwards when the summons is alleged to have been pasted on the notice board of the College. The submission on behalf of the appellant is that he was working in the College till 1988. The learned Senior Advocate for the appellant has submitted that the provisions of Order V Rule 17 and Order V Rule 19 of the Code of Civil Procedure are not complied with and therefore, it cannot be said that the suit summons was properly served on the appellant. The learned Senior Advocate for the appellant has submitted that the provisions of Order V Rule 17 and Order V Rule 19 of the Code of Civil Procedure are not complied with and therefore, it cannot be said that the suit summons was properly served on the appellant. Order V Rule 17 of the Code of Civil Procedure lays down that where the defendant or his agent refuses to sign the acknowledgement, 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, 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 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. The facts recorded earlier show that the suit summons was pasted on the notice board of the College on 09-03-1994 and then fresh summons were issued on 16-06-1994, 15-12-1995, 20-01-1996, 27-02-1996, 27-03-1996, 30-04-1996, 30-11-1996 and 30-12-1996. If the summons was pasted on the notice board of the College after complying with the requirements of Order V Rule 17 of the Code of Civil Procedure, it goes unexplained as to why fresh summons were issued on the subsequent dates as given above. If the summons was pasted on the notice board of the College after complying with the requirements of Order V Rule 17 of the Code of Civil Procedure, it goes unexplained as to why fresh summons were issued on the subsequent dates as given above. Order V Rule 19 of the Code of Civil Procedure lays down that where a summons is returned under Rule 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. If it is to be treated that the summons on the appellant was served as per Order V Rule 17 of the Code of Civil Procedure, then it was incumbent on the trial Court to examine the serving officer on oath as required by the provisions of Order V Rule 19 of the Code of Civil Procedure. There is nothing on the record to show that the serving officer was examined on oath by the trial Court as required by the provisions of Order V Rule 19 of the Civil Procedure Code. The learned Advocate for the respondent No.1/decree-holder has not been able to point out that the trial Court examined the serving officer on oath and made enquiry and was satisfied that the suit summons was duly served on the appellant. The provisions of Order V Rule 17 and Order V Rule 19 of the Code of Civil Procedure are required to be followed to prevent the mischief which can be played regarding the report of service of summons on the defendant. The requirement of Order V Rule 19 of the Code of Civil Procedure regarding examination of the serving officer on oath by the Court and further enquiry by the Court in the matter as it thinks fit, shows that the Court has to be satisfied about the service of the summons on the defendant. The requirement of Order V Rule 19 of the Code of Civil Procedure regarding examination of the serving officer on oath by the Court and further enquiry by the Court in the matter as it thinks fit, shows that the Court has to be satisfied about the service of the summons on the defendant. In the facts of the present case, the non-compliance of the provisions of Order V Rule 19 of the Code of Civil Procedure requiring the Court to examine the serving officer on oath regarding the service of summons on the defendant, results in the conclusion that the defendant was not properly served with the suit summons. Consequently, the judgment and decree passed against the appellant is unsustainable in law. 10. One fact favours the submission made on behalf of the appellant that the suit summons was not properly served on the defendant. The trial Court, by the impugned judgment and decree, granted interest at the rate of 18% per annum on the decretal amount. It is unexplained on the record as to why the appellant even after having knowledge of the judgment and decree will not challenge it for more than six years and take the risk of being thrown out of Court on the ground of limitation and the risk of paying interest at 18% per annum on the decretal amount. 11. In view of the above, I hold that the impugned judgment and decree passed against the appellant is bad in law having been passed without there being proper and valid service of suit summons on the appellant. The judgment and decree is bad in law in so far as it is passed against the appellant. I have not examined the legality and validity of the impugned judgment and decree passed against the other judgment-debtors. 12. Hence, the following order: The judgment and decree passed by the trial Court against the appellant only is set aside. The matter is remanded to the trial Court to permit the appellant to file the written statement and documents and to lead evidence, if so advised. The trial Court shall decide the Civil Suit after considering the defence raised by the appellant. The appellant shall pay Rs.12,50,000/- to the respondent No.1 till 16-03-2015. The matter is remanded to the trial Court to permit the appellant to file the written statement and documents and to lead evidence, if so advised. The trial Court shall decide the Civil Suit after considering the defence raised by the appellant. The appellant shall pay Rs.12,50,000/- to the respondent No.1 till 16-03-2015. In addition, the appellant shall furnish bank guarantee for Rs.25,00,000/- and file an affidavit alongwith the documents showing furnishing of bank guarantee before the trial Court till 16-03-2015. In case of default on the part of the appellant to comply with the above directions, this order shall stand re-called and the respondent No.1 would be at liberty to execute the decree against the appellant, if so advised. The appellant and the respondent No.1 shall appear before the 4th Joint Civil Judge (Senior Division), Nagpur on 16-03-2015 at 11-00 a.m. and abide by the further instructions/orders. It is clarified that I have not examined the legality and validity of the decree passed against the respondent Nos.2 and 5 and this judgment should not be construed to mean that the entire judgment and decree is set aside. The judgment and decree passed against the appellant is only set aside to enable the appellant to put forth his defence, considering the circumstances of the case. Respondent No.1 shall file an undertaking before the trial Court till 16-03-2015 that in case the claim of the respondent No.1 against the appellant is not proved, the amount paid by the appellant to the respondent No.1 shall be repaid to the appellant with interest as would be determined by the Court within the stipulated time. The appeal is allowed in the above terms. In the circumstances, the parties to bear their own costs.