spb/- 1 wp9795-03.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 9795 OF 2003 1. Shri Narayan Ramchandra Balve & Ors. ... Petitioners. V/s. 1. Shri Ranganath Fakira Balve & Ors. ... Respondents. ----- Mr. N.B. Nighot for the Petitioners. Mr. Mahesh V. Rawool i/by P.B.Shah for the Respondents. ----- CORAM : D. G. KARNIK, J. DATE : 08th JULY, 2011. P.C. : 1 Respondent no.2 has not been served though more than three years have been passed since the notice on respondent no.2 has been returned unserved. Petition against the respondent no.2 is dismissed for non- service. 2 Notice issued in the suit to the respondent no.1 (original defendant no.1) on 15th July, 2001 was returned unserved. The petitioners did not take any steps for service of the notice on the respondent no.1 (defendant no.1). The trial court, therefore, by order dated 30th October, 2001 dismissed the suit against respondent no.1. Thereafter, on 4th April, spb/- 2 wp9795-03.sxw 2002 the petitioners applied for issuance of a fresh notice to the respondent no.1 (defendant no.1) by setting aside the order of dismissal dated 30th October, 2001. By an order dated 19th June, 2002, the court dismissed the application. That order is impugned in the petition. 3 Order 9 Rule 5 of the Code of Civil Procedure says that when a summons was issued to the defendant, or to one of several defendants, is returned unserved and the plaintiff fails for a period of 7 days (previously the period was one month) from the date of the return made to the Court by the officer certifying to the court returns made by the serving officers, to apply for the issue of a fresh summons, the court shall make an order that the suit be dismissed as against such defendant. Sub-Rule 2 of Rule 5 of Order 9 provides when the suit is so dismissed, the plaintiff may, subject to the law of limitation, bring a fresh suit. There is no provision made in the Code for setting aside the order passed for dismissal of the suit under Sub-rule 1 of Rule 5 of Order 9 of the Code. Under Order 9 Rule 5, the court may have an inherent power to recall or set aside order of dismissal but such powers must be exercised on an application made to it within the reasonable time. Ordinarily, period of limitation for setting aside an ex-parte order or order of dismissal of a suit in default is 30 days. The reasonable time, in the absence of any special spb/- 3 wp9795-03.sxw circumstances, for making an application for setting aside the order for dismissal would be 30 days. In the present case, the application for issuance of a fresh summons was made after lapse of nearly one and half years i.e. on 4th April, 2002. No explanation was given for the delay. In the circumstances, in my opinion, the trial court committed no error in refusing to set aside the impugned order. 4 There is no merit in the petition, which is hereby rejected. [D.G. KARNIK, J.]