CRP 285/2011 BEFORE THE HON’BLE MR JUSTICE IA ANSARI JUDGEMENT AND ORDER :: O R A L :: Against an ex parte decree, dated 10-07-2009, passed, in Title Suit No. 58 of 2009, by the Court learned Munisiff No. 1, Barpeta, an application was mad e, under Order IX Rule 13 CPC, by two defendants, against whom, the said ex part e decree had been obtained. By the said application, the said defendants sought to get set aside the said ex parte decree on the ground that the defendants had not been served with the summons issued to them in the said suit. By order, date d 19-05-2011, as the learned Munsiff has set aside the joint decree passed again st the two defendants, namely, defendant Nos. 1 and 2, the plaintiffs, feeling a ggrieved, has filed this revision. 2. Heard Mr. IH Laskar, learned counsel for the petitioners-plaintiffs. 3. While considering the present revision, it may be noted that according t o the report of the Process Server, the defendant No. 1 was served with the summ ons on 20-03-2009 and the defendant No. 1 also received summons on behalf of his own brother, namely, defendant No. 2, who is major. 4. Drawing attention to the report of the Process Server, it is, now, conte nded by Mr. Laskar, that under Rule IX Order 13 CPC, the summons stood served no t only on the defendant No. 1, but on defendant No. 2 as well. While considering the correctness of the above submission, what is extremely important to note is that the defendant No. 1, namely, Sahidul Islam, appeared as a witness, he has deposed, in his examination-in-chief, that the summons on none of the two defend ants had been served. This assertion of the defendant No. 1, made on oath, went unchallenged. This apart, no evidence, in support of the fact that the summons s tood served, on the said two defendants, was adduced by the plaintiffs-decree ho lders. In such circumstances, it was not possible to place implicit reliance on the Process Server’s report. 5. At any rate, what transpires from the Process Server’s report is that th e summons had been served on the defendant No. 1 and the learned trial Court too k the view, in the impugned order, that summons stood served on the defendant No . 1, but not on the defendant No. 2. Having reached to this conclusion, the lear ned trial Court pointed out that since the proviso to Order IX Rule 13 states th at where the decree is of such a nature that it cannot be set aside against one defendant only, the decree may be set aside against all or any of the defendants . 6. Apart from the fact that in the absence of any challenge to the evidence of the defendant No. 1, it could not have really been held, and ought not to ha ve been held, by the learned trial Court that the defendant No. 1 stood served b y the summons, what is important to note is that Order V Rule 15 CPC reads as un der: 15. Where service may be on an adult member of defendant’s family. - Where in a ny suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on his at his residence and there is no like lihood of his being found at the residence within a reasonable time and he has n o agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him. 7. From a careful reading of Order V Rule 15, what transpires is that befor e service of summons on a defendant is treated as complete, it must be shown not only that the defendant was absent from his residence at the time, when the ser vice of the summon was sought to be effected on him at his residence, but that t here was no likelihood of the defendant to be found, in his residence, within a reasonable time and that he has no agent empowered to accept service of summons on his behalf. Subject to the satisfaction of these pre-conditions, Order V Rule 15 permits service of summons on any adult member of the family on behalf of th e defendant concerned. 8. In the present case, there is nothing to show that both the defendants r eside as members of a joint family. There is also nothing to show that the defen dant No. 2 was not likely to be found at his residence within reasonable time an d that he had no agent empowered to accept service of summons for him. In such c ircumstances, the learned trial Court correctly held that the service of summons , on the defendant No. 2, could not be proved. On the basis of the conclusion, s o reached, what ought to have been done by learned trial Court is, now, the ques tion. It is worth noticing, in this regard, that the first proviso to Order IX R ule 13 states as follows: 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. 9. In the present case, the decree, which has been obtained ex parte, had g ranted the relief of recovery of khas possession by evicting all the defendants. The decree was, thus, a joint decree the decree being inseverable, the same cou ld not have been effectively executed by evicting defendant No. 1 alone, particu larly, when it was not known as to which part of the suit property had been in t he exclusive use and possession of the defendant No. 1. Consequently, the decree , in its present state, could not have been executed, when the service of summon s on the defendant No. 2 could not be proved even if the decree were not set asi de against the defendant No. 1. 10. Situated thus, it is clear that the learned trial Court was wholly justi fied in setting aside the decree as a whole and restoring the suit to the stage at which the decree was passed. This Court does not find any infirmity, legal or factual, in the ultimate decision, which has been reached by the learned trial Court. This revision is, therefore, not admitted and shall accordingly stand dis missed. 11. No order as to costs.