ORDER : 1. Heard learned advocate Mr. Rajan J. Patel for appellants and learned advocate Mr. Rohan N. Majmudar for learned advocate Mr. N.K. Majmudar for respondent Nos. 1 and 1.2. 2. Upon the consent and request of learned advocates appearing for the respective parties, this matter is taken up for final hearing. 3. By way of this Appeal from Order, the appellants have challenged the order dated 04.12.2023 passed by the learned Auxiliary Chamber Judge, City Civil Court, Ahmedabad in Civil Miscellaneous Application No. 839 of 2022, whereby an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure filed by the present appellants. 4. The brief facts leading to this Appeal from Order are as under: 4.1 The deceased respondent No. 1-Thakorbhai Ishwarbhai Patel filed Miscellaneous Civil Suit No. 4170 of 2022 against the respondent Nos. 2 to 5 and the deceased appellant-Lalitaben Rasiklal Gandhi. The said suit came to be decreed on 21.04.2018. Thereafter, the Execution Petition No. 237 of 2021 came to be filed and the decree of possession was executed on 26.08.2022. Thereafter, the appellants herein filed Civil Miscellaneous Application No. 839 of 2022 and a Civil Suit No. 1396 of 2022 on the same date i.e. on 28.09.2022. The application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure came to be dismissed by the learned Trial Court on 04.12.2023 and the Civil Suit No. 1396 of 2022 under Order 7 Rule 11 of the Code of the Civil Procedure also came to be dismissed by the learned trial Court on 27.09.2023. 4.2 Being aggrieved and dissatisfied with the rejection order of the said application, the present appellants are before this Court. 5. Learned advocate for the appellants has submitted that the summons of the Civil Suit No. 4170 of 2022 was not duly served upon the present deceased-appellant who was the original defendant No. 5. It is further submitted that the defendant No. 5 was not residing at the address shown in the cause-title of the plaint where the summons was affixed on the conspicuous part of the property. It is further submitted that no opportunity was given to the defendant No. 5 in defending the suit. It is further submitted that the defendant No. 5 was not residing at the address shown in the cause-title of the plaint where the summons was affixed on the conspicuous part of the property. It is further submitted that no opportunity was given to the defendant No. 5 in defending the suit. During the pendency of the suit, the defendant No. 5-Lalitaben Rasiklal Gandhi expired on 21.07.2023, however, the plaintiff did not bring the legal heirs of the deceased-defendant No. 5 on record and the suit was decreed. It is further submitted that the heirs were not brought on record within the stipulated time, the suit automatically stood abated for want of bringing the heirs of defendant No. 5 on record. The learned advocate for the appellants has placed reliance upon the provisions of Order 9 Rule 13 of the Code of Civil Procedure which are reproduced herein-under: “13. Setting aside decree ex-parte against defendants - In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any Sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further 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 plaintiffs claim. Explanation - Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex-parte decree.” 6. Explanation - Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex-parte decree.” 6. Learned advocate for the appellants has submitted that the alleged fact of affixing the summons of the plaint on the conspicuous part of the suit property is an eye-wash in the background of the fact that there were no doors or windows on the property, upon which the summons could be affixed and the said property was under development. It is further submitted that the learned trial Court has committed a grave error in observing that the summons was duly served. It is further submitted that on 25.08.2022, the bailiff of the learned City Civil Court came with the police force for execution of the possession warrant and when the bailiff took the possession of the suit property on 25.08.2022, the present appellants came to know about the impugned judgment and decree passed by the learned City Civil Court on 19.04.2018 and 21.04.2018 respectively. It is further submitted that upon loosing the possession of the suit property, the application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure for a relief of setting aside the ex-parte judgment and decree came to be filed by the heirs of defendant No. 5. And on the even date, the Civil Suit No. 1396 of 2022 came to be filed for declaration and restoration of possession of the suit property from the present respondent No. 1. 7. Per contra, learned advocate for the respondent has submitted that the suit was filed in the year-2002 and after the due attempts made by plaintiffs, service of summons of the said suit could not be served and pursuant to the order passed by the learned trial Court under Order 5 Rule 17, the summons of the Civil Suit No. 4170 of 2002 was served by affixing on the conspicuous part of the suit property and even after such service, the defendant No. 5 remained silent and did not participate in the proceedings. It is further submitted that the service of summons under Order 5 Rule 17 is a deemed service and it is a valid service. It is further submitted that the service of summons under Order 5 Rule 17 is a deemed service and it is a valid service. It is further submitted that the address shown in the cause-title of the Civil Suit, the address shown on the death certificate of the defendant No. 5 and the address shown in the Execution Application, are the same address. 8. It is further submitted that now the appellants cannot make a hue and cry about non-service of the summons. Learned advocate for the respondent has relied upon the proviso of Rule 13 of the Order 9 of the Code of Civil Procedure, whereby it has been mentioned that no Court can set aside a decree passed ex-parte merely on the ground of irregularity in the service of summons. Learned advocate for the respondent has further submitted that Civil Suit No. 1396 of 2022 and the Civil Miscellaneous Application No. 839 of 2022 were filed on the same day, however, the appellants did not make a mention in either of the proceedings that they have resorted to such provisions. It is further submitted that since the defendant did not appear in the said Suit, though duly served. The death of defendant No. 5 never disclosed under the provisions of Order 21 Rule 10-A of the Code of Civil Procedure. Thus, in absence of the knowledge about death of defendant No. 5, during the pendency of the suit, the heirs could not be brought on record. It is the duty of the appellant to bring to the notice of the Court about the said fact. The defendant No. 5 had expired on 21.07.2013. In the rejoinder, learned advocate for the appellant, has submitted that the address shown in the cause-title of the plaint, in the death certificate and in the Civil Miscellaneous Application No. 839 of 2022, is not the same address and since the possession was lost pursuant to the order passed in the Execution Petition, the appellants had to change the address. It is also submitted that the cause of action for filing an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure and the cause of action for the Civil Suit No. 1396 of 2022, are different and the appellants were within the four corners of law to avail those two different remedies. It is also submitted that the cause of action for filing an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure and the cause of action for the Civil Suit No. 1396 of 2022, are different and the appellants were within the four corners of law to avail those two different remedies. It is further submitted that the appellant on the date of service of summons on the conspicuous part of the suit property, the defendant No. 5 was not residing in the suit premises and had no knowledge about the proceedings. 9. Having considered the submissions and the averments made in the present Appeal, the undisputed fact which has come up on record is that the Civil Suit No. 4170 of 2002 came to be filed by the respondent No. 1 herein against the respondent Nos. 2 to 5 and against original defendant No. 5 Lalitaben Rasiklal Gandhi and the service of summons was effected by resorting the provisions contained under Order 5 Rule 17 of the Code of Civil Procedure and the service of summons was carried out by affixing on the conspicuous part of the suit property which is mentioned in the cause-tile of the plaint. The plaintiff also sent an affidavit-in-lieu of examination-in-chief by RPAD to defendant No. 5, which was duly acknowledged. The heirs of the defendant No. 5 did not take appropriate steps to be impleaded in the Civil Suit. At this stage, the provisions of Order 5 Rule 17 would be relevant to reproduce herein-under: 17. The plaintiff also sent an affidavit-in-lieu of examination-in-chief by RPAD to defendant No. 5, which was duly acknowledged. The heirs of the defendant No. 5 did not take appropriate steps to be impleaded in the Civil Suit. At this stage, the provisions of Order 5 Rule 17 would be relevant to reproduce herein-under: 17. Procedure when defendant refuses to accept service, or cannot be found - Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, 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 that he has so affixed the copy, the circumstances under which he did so, and the behalf, nor any other person on whom service can be made, 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 name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. 10. On close perusal of the Civil Miscellaneous Application No. 839 of 2022, what is the main grievance voiced is that the service of the summons was not proper upon the defendant No. 5. There are no averments to the fact that at the time of service of summons under the provisions of Order 5 Rule 17, the defendant No. 5 was not residing at the suit property. In absence of such specific averment, the grievance voiced by the appellants before this Court is devoid of any merit and there is nothing on record to point out, except bare submission that appellants were not residing at the suit premises on the date of service of summons of the Suit. The provisions of Order 9 Rule 13 deals with setting aside the ex-parte decree passed against the defendant, wherein two important aspects are to be proved by the aggrieved party. The provisions of Order 9 Rule 13 deals with setting aside the ex-parte decree passed against the defendant, wherein two important aspects are to be proved by the aggrieved party. The first is that the defendant has to show and satisfy that the summons of the suit was not duly served and the second aspect is that the defendant was prevented by sufficient cause from appearing when the suit was called upon for hearing. In the present case on hand, the service of summons was duly effected upon the defendant No. 5 by resorting the provisions of Order 5 Rule 17. What is left out for the appellant to show that the original defendant No. 5 was prevented by any sufficient cause for non-appearing in the proceedings when the suit was called upon for hearing. In the present case, the appellant has not been able to point out any cause, much less, sufficient cause for non-appearing in the suit proceedings when it was called upon for hearing. Interestingly, the appellants have tried to ride on two horses by resorting to two different proceedings one is by way of Civil Suit No. 1396 of 2022, wherein the prayer is for declaration and restoration of possession and the second is that by also filing the application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure. On perusal of copy of the plaint being Civil Suit No. 1396 of 2022, which placed on record, the prayers are for the declaration of ownership rights and the restoration of possession of the suit property. The hollow attempt which was made by the learned advocate for the appellants in submitting that the cause of action of both the above proceedings are different has no force because the application under 9 Rule 13 is filed for setting aside the ex-parte impugned judgment and decree on 19.04.2018 and 21.04.2018 respectively, whereas the restoration of the suit property is also on the basis of the judgment and decree passed in Civil Suit No. 4170 of 2002. By clever drafting, the appellants cannot have two remedies and cannot claim that the cause of action of both the proceedings are different. The base of both the proceedings is the ex-parte judgment and decree on 19.04.2018 and 21.04.2018 respectively. 11. By clever drafting, the appellants cannot have two remedies and cannot claim that the cause of action of both the proceedings are different. The base of both the proceedings is the ex-parte judgment and decree on 19.04.2018 and 21.04.2018 respectively. 11. The learned trial Court has rightly observed that service of summons as per the provisions of Order 5 Rule 17 was effected with the order of the Court and further in absence of any cogent and reliable proof that the defendant No. 5 was not residing at the address shown in the cause-title of the plaint and was residing somewhere else when the summons was affixed on the conspicuous part of the suit property. 12. In the totality of the facts, the learned trial Court has not committed any error in rejecting the applications and has rightly considered the materials available on record. Hence, in my view, the Appeal from Order lacks merit and the same is dismissed with no order as to costs. Accordingly, the connected Civil Application stands disposed of.