JUDGMENT : This appeal is filed calling in question the order dated 9.1.2009 in Misc.P.No.406/2004 on the file of the XII Additional City Civil Judge, Bengaluru City (for short, ‘civil Court’). The appellant has filed the petition in Misc.P.No.406/2004 under Order IX Rule 13 of Code of Civil Procedure, 1908 for setting aside of the decree dated 14.3.2002 in O.S.No.7172/1996. The civil Court by the impugned order dated 9.1.2009 has dismissed the Misc.P.No.406/2004. The appellant is aggrieved by the exparte judgment and decree dated 14.3.2002 in the suit in O.S.No.7172/1996 filed by the third respondent as the next friend and mother/natural guardian of the first and second respondents. This suit in O.S.No.7172/1996 is decreed declaring that the first and second respondents are entitled for half share in the 1/3rd share in the suit item Nos.1 and 2 of Schedule ‘A’ properties. 2. The appellant has filed the miscellaneous petition in Misc.P.No.406/2004 for setting aside of the civil Court’s judgment dated 14.3.2002 contending that she was not served with suit summons in O.S.No.7172/1996, and she had no knowledge of the suit until much after the civil Court’s judgment. In fact, the appellant is specific that she came to know about the suit in O.S.No.7172/1996 only in the month of May 2004 when the officers of the Corporation came to the house and informed about the Court’s order. 3. The appellant in support of the petition for setting aside of the judgment and decree dated 14.3.2002, has examined herself as PW.1. The civil Court has dismissed the petition by the impugned order observing that the summons issued to the appellant was served on her mother, the fifth respondent, who is presently no more. The appellant, who even according to her own testimony was close to her mother, undeniably would have knowledge of initiation of the suit. Therefore, it cannot be reasonably inferred that the appellant did not have notice of the suit until the month of May 2004. The civil Court has also observed that the appellant’s grand mother and the mother were served and they did not contest the suit. The civil Court has also dismissed the petition on the ground that the suit instituted in the year 1996 is disposed of in the year 2002 after six years and claim for partition is pending in the final decree proceedings. 4. The civil Court has also dismissed the petition on the ground that the suit instituted in the year 1996 is disposed of in the year 2002 after six years and claim for partition is pending in the final decree proceedings. 4. The learned counsel for the appellant argued that fulcrum of the appellant’s case insofar as the merit of the suit is that the suit is filed in respect of properties left behind by the propositus, Sri.D.Mariyappa without including his daughters. If the daughters of Sri D.Mariyappa would be entitled for a share in the suit schedule properties, there cannot be a decree for 1/3rd share in favour of his widow, Smt.Parvathamma and his sons, Sri Ramdas and Sri Laxminarayana. 5. Insofar as merit of the petition under Order IX Rule 13 of CPC, the learned counsel for the appellant submits that the civil Court has dismissed the petition on two counts. Firstly, the suit summons is served on the appellant’s mother and the appellant enjoys a close relationship with her mother. Secondly, if the appellant enjoys a close relationship with her mother, who is served with the suit summons, it would only be reasonable to infer that the appellant had knowledge of the suit. The learned counsel for the appellant submits that this would be contrary to the provisions of Order IX Rule 13 of CPC especially second proviso thereof. 6. The learned counsel for the first to third respondents the plaintiffs, contesting the submissions on behalf of the appellant submits that the civil Court has assessed whether the appellant is bona fide in disputing the knowledge of the suit is based on the probabilities. If it is indisputable that the appellant’s mother was indeed served with the suit summons even on behalf of the appellant and the appellant enjoys a good relationship with her mother, it would be reasonable to impute knowledge and as such, the impugned order does not suffer from any irregularity. 7. In the light of the rival submissions, the question that arises for consideration is: “Whether the civil Court is justified in dismissing the petition on the ground that the knowledge of the suit could be imputed to the appellant because her mother was served with the suit summons”. 8. 7. In the light of the rival submissions, the question that arises for consideration is: “Whether the civil Court is justified in dismissing the petition on the ground that the knowledge of the suit could be imputed to the appellant because her mother was served with the suit summons”. 8. The provision of Order IX Rule 13 of CPC enables the defendant who is placed ex parte to apply for setting aside of the ex parte order, and if the Court is satisfied that the summons was not duly served, as contended in this case, the Court shall make an order setting aside the decree on such terms as the Court thinks fit. Significantly, the second proviso to Order IX Rule 13 of CPC stipulates that no Court shall set aside an ex parte decree merely on the ground that there is any irregularity in the service of summons if it is satisfied that the defendant had notice of hearing and had sufficient time to appear and answer plaint claim. It is thus obvious from the provision of Order IX Rule 13 of CPC that a Court must be satisfied that the defendant applying for setting aside of the ex parte decree had notice of the date of hearing and had sufficient opportunity to answer the plaint claim. The reliance by the learned counsel for the appellant on the decision of the Hon’ble Supreme Court in Sushil Kumar Sabharwal vs. Gurpreet Singh and Others, AIR 2002 SC 2370 is well founded and it would be useful to refer to paragraph 11 of the decision which reads as under: “The High Court has overlooked the second proviso to Rule 13 of O.9, C.P.C., added by the 1976 Amendment which provides 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 plaintiff’s claim. It is the knowledge of the ‘date of hearing’ and not the knowledge of ‘pendency of suit’ which is relevant for the purpose of the proviso abovesaid. Then the present one is not a case of mere irregularity in service of summons; on the facts it is a case of non-service of summons. It is the knowledge of the ‘date of hearing’ and not the knowledge of ‘pendency of suit’ which is relevant for the purpose of the proviso abovesaid. Then the present one is not a case of mere irregularity in service of summons; on the facts it is a case of non-service of summons. The appellant has appeared in the witness-box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim which he did not avail and utilize.” 9. The Court after having found that the appellant was not served personally with the suit summons and the summons issued to her was served through her mother, should have considered the evidence on record to satisfy itself on the aforesaid requirement under the second proviso to Order IX Rule 13 of CPC. Further, the service of summons and notice on an adult member would suffice provided the conditions in Order V Rule 15 of CPC are satisfied and is accordingly recorded. The civil Court has failed to consider the aforesaid circumstances and has proceeded to dismiss the petition on the ground that the appellant had knowledge of the suit would be impermissible in law. In the facts and circumstances of the case, especially given the fact that the suit by the first and second respondents through their mother, the third respondent, is instituted in the year 1996, it would also be just and proper to set aside the impugned judgment and decree in O.S.No.7172/1996 and restore the suit for read judication. Therefore, the following: ORDER a) The appeal is allowed. The order dated 9.1.2009 in Misc.P.No.406/2004 on the file of the XXII Additional City Civil Judge, Bengaluru, is set aside. The suit in O.S.No.7172/1996 is restored for read judication on merit. b) The appellant and the first to fourth respondents shall appear before the civil Court without further notice of first hearing date on 24.2.2020. c) The civil Court shall dispose of the suit as expeditiously as possible, but within an outer limit of nine months from 24.2.2020.