JUDGMENT : Appellants who are petitioners in Misc.No.385/2011 are assailing the order dated 04.12.2015 passed in Misc.No.385/2011 by VI Addl.City Civil & Sessions Judge, Bengaluru City whereunder petition filed by them under Order 9 Rule 13 CPC came to be dismissed on the ground that cause shown for their non appearance in Misc.No.225/2001 is not duly supported by material on record or in other words, they were not able to establish that they had no notice of the proceedings pending in Misc.No.225/2001 and they had not made out a case for setting aside the exparte order dated 09.08.2005 passed in Misc.No.225/2001. 2. Facts in brief which led to filing of this appeal can be crystallised as under: First respondent – Karnataka State Financial Corporation. (for short ‘Corporation’) filed Misc. Petition No.225/2001 under Section 31(1)(aa) and 32(1) of the State Financial Corporations Act, 1951 against petitioners and three others praying for an order that a sum of Rs.97,48,226/- is due as on 10.09.2000 payable to the Corporation by first respondent with future interest at 22% p.a. on a sum of Rs.95,17,487/- towards term loan of Rs.30 lakhs and @ 3.5% p.a. on a sum of Rs.2,30,739/- towards soft loan of Rs.2 lakhs borrowed, until entire amount is realized; for a direction to respondents 2,3,4 & 5 jointly and severally to pay the said sum. Though notice came to be issued to the respondents therein and same had been served, there was no representation on their behalf and as such, trial Court taking into consideration the unrebutted evidence tendered on behalf of the Corporation’s official and the documents relied upon by the Corporation marked as Exs.P1 to P8, petition came to be allowed and it was ordered that respondents 2 to 5 would be liable to pay jointly and severally a sum of Rs.97,48,226/- with interest @ 22% p.a. from the date of filing of the petition till actual payment. Corporation was also permitted to sell petition schedule property for realization of the said amount. 3. In order to execute the order passed in the said proceedings or to have the fruits of the decree, Corporation filed execution petition No.1603/2008 and in the said proceedings, petitioners herein were served with the notice and it is thereafter they filed a Misc.petition in Misc.No.385/2011 under Order 9 Rule 13 CPC for setting aside the exparte order passed in Misc.No.225/2001 on 09.08.2005. Since there was delay in filing said petition, an application under Section 5 of the Limitation Act came to be filed seeking condonation of delay. In the said proceedings, first petitioner got herself examined as P.W.1 and she also produced 5 documents to substantiate her claim of not being in the knowhow of the proceedings of Misc.No.225/2001. Corporation examined one of its official as R.W.1. After considering the rival contentions raised by the respective learned Advocates appearing for the parties, trial Court condoned the delay in filing Misc. petition No.385/2011, but on the issue as to “whether petitioners/appellants had knowledge about pendency of the proceedings in Misc.No.225/2001 initiated by the Corporation?” has arrived at a conclusion there was no documentary evidence on record to support the version of P.W.1 (Smt.M.Lakshmi Shetty) that when she came to know of passing of the exparte decree on 22.02.2011. It was also opined by the trial Court that on account of Corporation being unable to effect service of notice on petitioners herein namely, respondents 2 & 4 in Misc.No.225/2001, Corporation had been permitted to take out notice on them by substituted service namely, through paper publication and paper publication was carried out and as such, it came to be held there was due service of notice on the petitioners. Hence, it arrived at a conclusion that petitioners had knowledge of proceedings pending in Misc.No.225/2001. On these amongst other grounds as discussed in its order dated 04.12.2015, Misc. Petition No.385/2011 filed under Order 9 Rule 13 CPC came to be dismissed. Hence, this appeal. 4. I have heard the arguments of Sri Madhukar Deshpande, learned Advocate appearing for appellants and Sri P S Malipatil, learned Advocate appearing for respondent – 1. Respondents 3 & 4 are served and unrepresented. Notice to respondent 2 has been dispensed with vide order dated 13.07.2017. 5. Hence, this appeal. 4. I have heard the arguments of Sri Madhukar Deshpande, learned Advocate appearing for appellants and Sri P S Malipatil, learned Advocate appearing for respondent – 1. Respondents 3 & 4 are served and unrepresented. Notice to respondent 2 has been dispensed with vide order dated 13.07.2017. 5. It is the contention of Sri Madhukar Deshpande, learned Advocate appearing for appellants that trial Court committed a serious error in arriving at a conclusion that there was due service of notice on the appellants herein i.e., respondents 2 & 4 in Misc.No.225/2001 and it had failed to consider that shara found on the returned envelope – Exs.P1 & P2, clearly indicated that ‘addressee has left’ and without ordering for issuance of fresh notice in a hypertechnical manner, trial Court has passed the impugned order without even noticing that notice issued to respondents 2 & 4 in Misc.No.225/2001 had not been duly served on them. He would elaborate his submissions by contending that service of notice in Misc.No.225/2001 on the appellants herein (petitioners in Misc.No.385/2011) by substituted service namely, through paper publication should not be construed as proper service since Court below without noticing that Corporation ought to have exhausted all the recourses available under Order V CPC to serve them personally and without there being an order passed by the trial Court with regard to the Corporation being unable to effect the service of notice on the respondents 2 & 4 in Misc.No.225/2001 or in other words, they were avoiding service of notice, it could not have held that service of notice by substituted service namely, through paper publication that it was duly served on the respondents 2 & 4 (appellants herein). Hence, on this ground also, he seeks for the order under challenge being set aside. 6. Hence, on this ground also, he seeks for the order under challenge being set aside. 6. Per contra, Sri P.S.Malipatil, learned Advocate appearing for the Corporation would support the impugned orders under challenge and would contend that only defence which was raised by the appellants in the petition filed under Order 9 Rule 13 CPC to set aside exparte order is on the ground that petitioners had intimated the Corporation by a communication dated 20.11.1996 – Ex.P4 which contained their address and as such, Corporation ought to have taken notice of the address which was in the knowhow of the Corporation and this course was not taken to by the Corporation, would be of no consequence or such ground was not available to the appellants inasmuch as, even according to the appellants, as on the date Corporation filed the petition Misc.No.225/2001, they were not residing in the address reflected in the communication dated 20.11.1996 – Ex.P4 and as such, sending notice to the address reflected or found in Ex.P4 would have been of no consequence and as such, trial Court had rightly not accepted the contention of the appellants and there is no infirmity whatsoever in dismissing the petition on the ground that petitioners had knowledge about pendency of proceedings in Misc.No.225/2001. Hence, he prays for dismissal of the appeal. 7. Having heard the learned Advocates appearing for parties and on perusal of the original records secured from both the Courts, this Court is of the considered view that following points would arise for consideration: (1) “Whether order dated 04.12.2015 passed in Misc.No.385/2011 dismissing the petition filed under Order 9 Rule 13 CPC is liable to be set aside or affirmed? (2) Whether Court below while appreciating the evidence in Misc.No. 385/2011 has erred in not considering the evidence available on record in proper perspective and had failed to consider available evidence in proper perspective? (3) What order?” 8. Since these points are interlinked and answering any of them would overlap, they are taken up together for consideration and disposed of by adjudicating these three points together. RE: POINTS (1) TO (3): 9. Corporation in order to realize its purported dues from appellants herein and three others, filed a petition in Misc.No.225/2001 under Section 31(1)(aa) and Section 32(1) of SFC Act for recovery of Rs.97,48,226/with interest for the loan of Rs.32lakhsborrowed by the appellants. RE: POINTS (1) TO (3): 9. Corporation in order to realize its purported dues from appellants herein and three others, filed a petition in Misc.No.225/2001 under Section 31(1)(aa) and Section 32(1) of SFC Act for recovery of Rs.97,48,226/with interest for the loan of Rs.32lakhsborrowed by the appellants. Trial Court adjudicating Misc.No.225/2001 ordered for issuance of notice on the respondents therein and notice issued to appellants and respondents 2 to 4 herein came to be returned with a postal shara ‘door locked’ as could be seen from the order sheet of Misc.No.225/2001 dated 16.03.2002. By order dated 26.02.2003 fresh notice was issued to appellants and respondents – 2 to 4 through registered post acknowledgment due. However, service of notice was not affected and between the dates of 25.06.2003 to 19.02.2004. Corporation did not take fresh steps. However, on 17.06.2004, an application under Order 5 Rule 20 CPC came to be filed for effecting service of notice on the appellants and respondents 2 to 4 herein. Said application came to be allowed on the same day and by order dated 27.10.2004 appellants and respondents 2 to 4 herein came to be placed exparte. It is thereafter petition filed by the Corporation in Misc.No.225/2001 was allowed on 09.08.2005. In paragraph 4 of the application supporting the affidavit for substituted service, deponent of said affidavit on behalf of the Corporation has stated to the following effect: “4. The deponent submits that the respondents 1 to 5 have changed their address and the same has not been intimated to the Corporation and hence it is nay impossible to serve notice on respondents 1 to 5 in the normal course.” As noticed herein above, this application has been allowed on the day it came to be filed i.e., on 17.06.2004. 10. Rule 20 of Order 5 CPC enables a party to the proceedings to take out notice by substituted service on such Court being satisfied that there is reason to believe that noticee is keeping out of the way for the purpose of avoiding service. Rule 20 of Order 5 reads as under: “Order 5: Issue and Service of Summons. 10. Rule 20 of Order 5 CPC enables a party to the proceedings to take out notice by substituted service on such Court being satisfied that there is reason to believe that noticee is keeping out of the way for the purpose of avoiding service. Rule 20 of Order 5 reads as under: “Order 5: Issue and Service of Summons. Rule 20: Substituted service : (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Courthouse, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. [(1A) Where the Court acting under subrule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.) (2) Effect of substituted service. Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed - Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.” 11. A bare reading of subrule (1) of rule 20 CPC would clearly disclose that it is satisfaction of the Court which is paramount for ordering issuance of notice by substituted service, Court must record its reasons or satisfaction before directing substituted service of notice. Where summons or notice issued through process of Court or through process of postal authorities were to be returned for the reason that noticee is not available at the address at the time of effecting service of notice, Court cannot infer that noticee is attempting to avoid service of notice. Where summons or notice issued through process of Court or through process of postal authorities were to be returned for the reason that noticee is not available at the address at the time of effecting service of notice, Court cannot infer that noticee is attempting to avoid service of notice. In other words, Court has to apply its mind by ascertaining present address of the defendant and call upon the petitioner or plaintiff as the case may be, to give correct address and then direct issue of summons to such new address. This view is also supported by the judgment of Hon’ble Apex Court in the case of M/s. NEERJA REALTORS PVT LTD vs. JANGLU (DEAD) THROUGH L.R. (CIVIL APPEAL NO. 71/2018) rendered on 29.01.2018. It has been held by the Hon’ble Apex Court that Order 5 Rule 20 CPC mandates that Court has to be satisfied that there is reason to believe that defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, summons could not be served on them in the ordinary way. It has been further held that substituted service is an exception to the normal mode of service and as such, Court has to apply its mind to the requirements of Order 5 Rule 20 CPC and its order must disclose due consideration of the provisions contained in it and has found fault with mechanical orders passed in that regard as being contrary to the provision. 12. Keeping these principles in mind, when the facts on hand are examined, it would disclose that first petitioner in the proceedings initiated by her in Misc.No.385/2011 under Order 9 Rule 13 CPC for setting aside exparte order dated 09.08.2005 has not only stated that she had no knowledge of pendency of proceedings in Misc.No.225/2001, but has also specifically contended that Corporation had knowledge of the fact that she was not residing in the address furnished by the Corporation in the petition filed in Misc.No.225/2001. It was also contended that Corporation was well within the knowhow of the address where appellant was residing atleast as on November, 1996 and to substantiate her claim in that regard, she had produced a communication dated 20.11.1996 delivered to the Corporation which came to be marked as Ex.P4. It was also contended that Corporation was well within the knowhow of the address where appellant was residing atleast as on November, 1996 and to substantiate her claim in that regard, she had produced a communication dated 20.11.1996 delivered to the Corporation which came to be marked as Ex.P4. A perusal of the said communication would clearly disclose that it was duly received by the Corporation on 20.11.1996 and in fact, witness who was examined on behalf of the Corporation R.W.1 in his cross examination dated 18.12.2013 has pleaded his ignorance about said communication. In other words, he does not dispute the existence of such communication. He has not even stated in his examination – in-chief that Corporation has not received such communication from the first appellant. That apart, communication dated 20.11.1996 – Ex.P4 would also disclose that first appellant has informed the Corporation of the fact that she had resigned from the Managing Directorship of the company by enclosing the letters addressed to the Registrar of Companies and claiming that she had no role in the management from the beginning. However, this Court would not express any opinion with regard to the status of first petitioner vis-à-vis being Director of the company which it had borrowed loan. It is left to be decided and adjudicated by the trial Court and no opinion is expressed in that regard. However, the fact remains that address reflected in the Ex.P4 is not the same address which has been furnished by Corporation in the Misc.No.225/2001 filed and it is not the address to which Corporation had taken steps to serve the notice on appellants. 13. Be that as it may. In view of the fact that there was no service effected on respondents 2 and 4 in Misc.No.225/2001, finding recorded by the trial Court while adjudicating the application under Order 9 Rule 13 CPC cannot be held as one with proper appreciation of evidence and proper consideration of the material available on record and as such on this ground also order under challenge is liable to be set aside. 14. 14. Though Mr.Malipatil, learned Advocate appearing for Corporation has made a valiant attempt to contend that on account of first appellant not disputing that she is not a resident of Bengaluru and having not intimated the Corporation of her present address where she was residing, Corporation was left with no other option except to take out notice to her by substituted service by getting summons published in newspaper having circulation at Bengaluru and as such there is no infirmity in the order passed by the Courts below, though looks attractive at first blush, it cannot be accepted for the reasons assigned herein above namely, at the cost of repetition, it requires to be noticed that as on 20.10.1996 (Ex.P4) Corporation knew the actual address where petitioner had last resided, yet, it (Corporation) did not make any attempt to serve notice on the appellant on the said address, which was last known address of the appellant available with the Corporation. Even otherwise, order of the trial Court in Misc.No.225/2001 allowing the application by order dated 17.06.2014 is contrary to subrule (1) of Rule 20 of Order 5 CPC. As such, on this ground also, order passed by the Court below cannot be sustained. 15. Sri Malipatil, learned Advocate appearing for the Corporation has also brought to the notice of this Court about the property which had been offered as personal guarantee by the appellants which was attached in Misc.No.225/2001 had been sold by them contrary to the order of attachment and as such, he prays for the appellants being put on terms. 16. It is an undisputed fact that Court which adjudicated Misc.No.225/2001 had passed an exparte order. There is no material on record to show that order of attachment effected by the Corporation by invoking Order 38 Rule 5 CPC was infact served on appellant or service of attachment notice was effected on the appellants. In the absence thereof, appellants cannot be put on terms. However, it is made clear that no opinion is expressed in that regard and Corporation would be at liberty to work out its rights in the proceedings i.e., Misc.No.225/2001, inasmuch as, petition filed under Order 9 Rule 13 which has been dismissed in Misc.No.385/2011 is now being set aside by this Court and matter is being remitted back to the trial Court for adjudication afresh. Hence, no orders are passed in that regard and contentions of both parties are kept open to be adjudicated before the trial Court. 17. Hence, I proceed to pass the following: JUDGMENT (i) Miscellaneous First Appeal is hereby allowed. (ii) Order dated 04.12.2015 passed by VI Addl.City Civil & Sessions Judge, Bengaluru in Misc.No.385/2011 is hereby set aside and the petition filed by the appellants under Order 9 Rule 13 CPC is hereby allowed. (iii) Consequently, judgment and decree passed on 09.08.2005 in Misc.No.225/2001 is hereby set aside and Misc.No.225/2001 is hereby restored to the file of City Civil Judge, Bengaluru for being disposed of on merits and in accordance with law keeping in mind observations made herein above. (iv) Since both parties are duly represented, they shall appear before City Civil Judge, Bengaluru on 16.04.2018 without waiting for further notice and it is made clear that trial Court shall not be required to issue notice to appellants 1 & 2 herein. (v) Registry is directed to retransmit the records to the jurisdictional Courts forthwith. (vi) No order as to costs.