Judgment Ms. Nirmaljit Kaur, J.:-The present revision petition has been filed under Article 227of the Constitution of India for setting aside the order dated 30.05.2017passed by the Additional Civil Judge (Sr.Division), Faridabad, dismissing anapplication under Order 9 Rule 13 CPC filed by the petitioner, who wasdefendant No.3 in the suit, seeking the setting aside the ex parte judgmentand decree dated 03.09.2014 as well as the judgment and order dated19.08.2019 passed by the Additional District Judge, Faridabad, dismissingappeal of the petitioner against the order dated 30.05.2017 with a furtherprayer to allow the application of the petitioner under Order 9 Rule 13 CPC. 2. Brief facts, in short, which has necessitated the filing of thepresent revision petition commence when the respondent-plaintiff instituteda suit for possession by way of a specific performance of agreement to sellagainst the defendants in the said suit alleging that Shri Ashok KumarSharma and Sumit Chanana, defendant Nos.1 and 2 in the said suit, hadentered into an agreement to sell dated 10.07.2008 with the respondentplaintiff for a total sale consideration of Rs.60.00 lacs and out of which, therespondent-plaintiff had paid earnest money of Rs.20.00 lacs. Thereafter,the above-mentioned owners sold the property to the present petitionerKhushdil, who was defendant No.3 in the suit, vide sale-deed dated19.03.2010. The present petitioner and defendant Nos.1 and 2 wereproceeded ex parte and the suit was decreed vide judgment and an ex partedecree dated 03.09.2014 on the ground that notice issued to petitionerdefendant No.3 was received back with the report of refusal. After passingof the aforesaid decree, the respondent-plaintiff filed an executionapplication on 17.01.2015. A notice of the said application was issued on04.03.2015 for 01.04.2015 and once again the same was issued for23.04.2015. It is alleged that the said summons were received by mother ofthe present petitioner, but since she refused to accept the same once again,report of refusal was given. However, the petitioner-judgment-debtorappeared in the execution proceedings on 23.04.2015. Thereafter, thepetitioner-judgment debtor filed an application under Order 9 Rule 13 CPCfor setting aside the ex parte judgment and decree dated 03.09.2014 on11.05.2015. However, the said application was dismissed vide order andjudgment dated 30.05.2017. The petitioner-defendant No.3 accordinglyfiled appeal against the order dated 30.05.2017, which too was dismissed on19.08.2019. Hence, the present revision is filed against the order andjudgment dated 30.05.2017 as well as the order dated 19.08.2019. 3. However, the said application was dismissed vide order andjudgment dated 30.05.2017. The petitioner-defendant No.3 accordinglyfiled appeal against the order dated 30.05.2017, which too was dismissed on19.08.2019. Hence, the present revision is filed against the order andjudgment dated 30.05.2017 as well as the order dated 19.08.2019. 3. While praying for setting aside the impugned orders, learnedcounsel for the petitioner-defendant No.3 submitted that the said orders arepassed in total non-compliance of the mandatory provisions of Order 5 Rule19 CPC. No affidavit of the Serving Officer has come forth on record quathe alleged service verification and nor is there any report of the service ofthe petitioner. The Process Server failed to observe the mandatoryprovisions of Order 5 Rules 17 & 19 of the CPC. The report iscontradictory. On the one hand, it is stated that there is no independentperson available and on the other hand one Pardeep has signed, who was notproduced. No summons were sent by registered post at proper address withacknowledgement due. The Court has wrongly recorded that there wasdelay. The delay starts from the date of the knowledge and the petitionercame to know only after the summons were received by his mother and acopy of the execution petition was left with his mother. It was furthercontended that case of the petitioner is good on merits and, therefore, heshould not be condemned unheard. As per the learned counsel for thepetitioner, the property was purchased by his father, who is an ExServiceman in the Indian Air Force, and who has invested his life-timesavings in buying the said property so as to settle after his retirement. Theowners of the house Ashok Kumar Sharma and his son Sumit Chanana haveentered into full and final agreement in favour of their mother, namely,Shakuntala on 21.08.2009 and all documents like Possession Certification,Will etc. were executed in the favour of their mother. The said transactionwas facilitated by Sumit Arora and R.K.Chawla, who have also witnessedthe documents. Thereafter, mother of the petitioner executed the sale deedin favour of the petitioner. Copies of the general power of attorney as wellas the sale deed have been placed on record of this revision petition. Fatherof the petitioner had paid Rs.15.00 lacs by way of two cheques besides theamount of Rs.22.00 lacs having been given in cash, which were drawn bytheir father from his account. Copies of the general power of attorney as wellas the sale deed have been placed on record of this revision petition. Fatherof the petitioner had paid Rs.15.00 lacs by way of two cheques besides theamount of Rs.22.00 lacs having been given in cash, which were drawn bytheir father from his account. On the other side, the agreement to sell withthe respondent-plaintiff is dated 10.07.2008 for a consideration of Rs.60.00lacs, out of which Rs.28.00 lacs was to be paid with the registration of thesale-deed. 4. Accordingly, civil suit was filed by respondent-plaintiff,namely, Virender alias Birender for the execution of the sale deed qua theagreement to sell of the complete house, which was allowed vide an ex partedecree dated 03.09.2014. 5. Learned counsel for the respondent-plaintiff while vehementlyopposing the revision petition raised the following arguments: (a) notice of suit issued to petitioner-defendant No.3 wasreceived back unserved with the report of refusal and he wasproceeded ex parte by the Court only after waiting and afterthe case was called out several times. (b) The fact that the petitioner is in the habit of refusing isevident from the fact that even the subsequent notice in theexecution petition was received back with the report ofrefusal but in spite of the same, the petitioner appeared.Meaning thereby that the petitioner was aware of the suit forspecific performance but he chose to remain away only todelay the proceedings as he is in possession of the propertybut appeared in the execution proceedings even though onceagain the report was of refusal. (c) It was further contended that this is the normal methodand strategy followed in a number of suits of specificperformance to delay and frustrate the plaintiff. (d) The witness produced by the petitioner as AW2 TonyK.Joseph to prove that no person by the name of Pardeep sonof Ramdass was residing in the premises was disbelieved andthat there is always the presumption of truth and correctnessto the report of the Process Server. (d) The witness produced by the petitioner as AW2 TonyK.Joseph to prove that no person by the name of Pardeep sonof Ramdass was residing in the premises was disbelieved andthat there is always the presumption of truth and correctnessto the report of the Process Server. (e) Further, the application under Order 9 Rule 13 CPC wastime-barred having been filed almost a lapse of five yearsand without any application for condonation of delay.Reliance was placed on the judgments rendered in the casesof Union of India and others vs Ram Prasad Pandey and others 2006(6) ADJ 635 and Mool Chand Yadav @ Ashok vs Phool Singh and another 2010(5) RCR (Civil) 8 tocontend that in the absence of application for condonation ofdelay, the matter cannot be entertained on merits. (f) The fact that the petitioner intentionally did not appearin the suit was also evident from the fact that he was alsoproceeded ex parte vide order dated 05.12.2015 in theexecution application but was restored subject to the paymentof Rs.1000/- as costs vide order dated 11.09.2019. (g) The suit property was mortgaged with the bank andheavy loan of Rs.65 lacs stood outstanding against it. Theentire amount was paid by the respondent-plaintiff. Whiledoing so, he had also approached the petitioner to pay someamount towards the loan and hence, the petitioner knew thependency of the suit filed by the respondent-plaintiff. Hewas residing in the same building, so he is bound to knowabout the pending litigation when parallel proceedings forrecovery of loan are also going on. (h) Number of years have passed. To set aside the ex parteorder, at this stage, will cause grievance and hardship. 6. Learned counsel for the parties were heard at length. 7. In order to adjudicate, first and foremost, it would beappropriate to see the report of refusal as submitted by the Process Server.A perusal of the same, which is in vernacular, shows that it is contradictory.It is specifically mentioned that no witness is available, whereas, onewitness, Pardeep has duly signed the same. In fact, the address of thiswitness is also mentioned. In spite of the same, no such witness has beenexamined. Neither of the parties could establish the existence or nonexistence of said Pardeep. Therefore, the report itself is surrounded withdoubt. In fact, the address of thiswitness is also mentioned. In spite of the same, no such witness has beenexamined. Neither of the parties could establish the existence or nonexistence of said Pardeep. Therefore, the report itself is surrounded withdoubt. While disputing the argument of learned counsel for the petitionerthat Process Server did not observe the mandatory provisions of Order 5Rule 19 CPC and that the summons returned under Rule 17 should beverified by the affidavit of the Serving Officer, learned counsel for therespondent-plaintiff referred to the endorsement on the summons by theProcess Server as being the affidavit. However, the said endorsement doesnot meet the necessary ingredients laid down in the CPC for verification ofthe affidavit. Even the name of the Process Server is not clear. The same isnot even on oath. Even if the said discrepancy is ignored, the fact remainsthat failure to establish the identity of one Pardeep, the alleged independentwitness, coupled with the specific averment in the report by the ProcessServer that no independent witness was available, being contradictory, hascast a shadow of doubt on the service of the summons. 8. The argument of learned counsel for the respondent-plaintiffthat there is a general trend to allow the ex parte proceedings to be initiatedand allow the ex parte decree passed in order to cause delay cannot be madeapplicable to every case or be generalized. 9. The next argument of learned counsel for the respondent-plaintiff that the petitioner was in the habit of refusing was evident from thefact that he appeared in the executing proceedings in spite of the fact thatboth the reports of the notices issued in the civil suit and the executionpetition were same of ‘refusal’ but he appeared in the execution proceedings,does not cut any ice. It is the stand of petitioner-defendant No.3 that copyof the execution petition had been left behind with his mother, who isalleged to have refused the summons and thereafter, on seeing the copy ofthe execution petition, he wasted no time in filing the application underOrder 9 Rule 13 CPC. In any case, it is hard to believe that anyone wouldtake the risk of allowing an ex parte decree to be passed intentionally andpurposely and that too after a report of refusal, which is always consideredas ‘served’ knowing fully well that in such a situation he will always run therisk of the application under Order 9 Rule 13 CPC being dismissed. 10. 10. The next argument of learned counsel for the respondent-plaintiff that application under Order 9 Rule 13 CPC was hopelessly timebarred will, therefore, be of no help, once the Court concludes that thepetitioner did not know about the pendency of the suit as it is not disputedthat the delay commences from the date of knowledge. In the present case,the date of knowledge is the date his mother received the summons in theexecution petition and she refused to accept the summons in the executionpetition. The argument that no date of knowledge is mentioned in theapplication under Order 9 rule 13 to allow the Court to know about the dateof knowledge from which the limitation can be counted, too, does not helpas the petitioner filed the application under Order 9 Rule 13 CPC within thelimitation period from the date of the alleged report of refusal of thesummons in the execution petition. 11. The next argument of learned counsel for the respondent-plaintiff is that the petitioner did not file application for condonation ofdelay and that the application under Order 9 Rule 13 CPC cannot beentertained without the application for condonation of delay. However, thelearned counsel is not able to dispute that once it is accepted that theapplication is within time from the date of the knowledge according toArticle 123 of the Limitation Act, as held above by this Court, noapplication for condonation of delay is required to be filed. Therefore, thejudgments relied upon by the learned counsel for the respondent does notapply to the facts of present case, whereas in the case of P.Krishna Kumari vs A.Kandasamy, [2012(1) Marriage L.J. 590] : 2010(24) RCR (Civil) 807, wherein, no application forcondonation of delay was filed, the learned Single Bench of the MadrasHigh Court held that the same was not required to be filed in case theapplication under Order 9 rule 13 was from the date of the knowledge. Para17 of the said judgment reads as under:- “17. The Family Court appears to have been swayed by twoextraneous considerations (i) that the ex parte order waspassed on 09.11.2004 and petition was filed on 14.05.2008nearly after four years and that it was not accompanied by anypetition to condone delay. (ii) in the mean time, therespondent got married on 01.02.2008 and begot a child on12.07.2009. In our considered view, both the above groundsare unsustainable. (ii) in the mean time, therespondent got married on 01.02.2008 and begot a child on12.07.2009. In our considered view, both the above groundsare unsustainable. In the supporting affidavit, the appellanthas clearly averred that after she left the matrimonial house,she was in the fond hope of re-joining her husband and onlyon 12.05.2008 when the common friend--Velu informed herabout the ex parte divorce decree she came to know about thesame and thereafter filed the petition to set aside the ex partedecree. When the appellant was not duly served with notice,she has filed the application within 30 days from the date ofher knowledge. As the petition was filed within time from thedate of knowledge, the Family Court was not right in sayingthat the petition was not accompanied with application forcondonation of delay.” 12. Similar view was also held by learned Single Judge ofAllahabad High Court in the case of Ram Autar and 2 others vs Board of Revenue Allahabad and 4 others 2016(sup) CivCC 787. 13. The next argument raised by learned counsel for therespondent-plaintiff is that the petitioner was habitual in remaining absentand his intention and conduct to purposely allow an ex parte order to bepassed was only to delay is also evident from the order dated 05.12.2015passed by the Executing Court vide which he was proceeded ex parte andthereafter vide the order dated 11.09.2019 the said order was set aside by theExecuting Court on an application moved by the petitioner. While replyingto the same, learned counsel for the petitioner has pointed out that on thesaid date, the petitioner-judgment debtor was proceeded ex parte as on thesaid date, his application under Order 9 Rule 13 was also running side byside and was fixed for the same date. He had to choose his priority and itwas important for him to appear in the application filed under Order 9 rule13 and since he could not be present for both the cases, he was proceededagainst ex parte on 05.12.2015 in execution petition, which was ultimatelyset aside by Additional Civil Judge (Sr.Divn.) on 11.09.2019 taking note ofthis very fact. Hence, the respondent-plaintiff cannot take advantage of thesame or hold the same against the petitioner to refer to his conduct. 14. Hence, the respondent-plaintiff cannot take advantage of thesame or hold the same against the petitioner to refer to his conduct. 14. It is also the stand of learned counsel for the respondent-plaintiff that he had paid the entire amount of Rs.65.00 lacs to settle theaccount with the bank with whom the property was mortgaged andtherefore, it is hard to believe that the petitioner-defendant No.3 was notaware of the pendency of the civil suit when he is staying in the saidbuilding itself and the respondent-plaintiff had also approached him to repaythe loan. The said argument cuts both ways. It is not understood as to howthe respondent-plaintiff knew about the mortgage who is not staying in thebuilding, whereas, the petitioner, who is in the same building does not knowabout it. Hence, at this stage, it cannot be ruled out as also argued by thelearned counsel for the petitioner that the other respondents-vendors and therespondent-plaintiff may be in hand and glove. Accordingly, it would notbe safe to uphold the ex parte decree. The petitioner must be given anopportunity to defend himself. 15.The last argument that it has taken years for the respondent-plaintiff to succeed and he has invested a lot without getting the possessioncan always be safeguarded by directing the trial Court to decide the suitafresh after granting opportunity to the petitioner-defendant to file thewritten statement and lead his evidence in accordance with law within a spanof six months even if day-to-day hearing to take place. 16. In view of the above, the revision petition is allowed and theorders dated 30.05.2017 and 19.08.2019 are set aside. Parties to appearbefore the learned Trial Court on 22.10.2019. The Trial Court shall proceedto decide the suit on merits as expeditiously as possible preferably withinsix months from the date parties appear before it on 22.10.2019.