IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.123 of 2008. Date of decision: 23.07.2008. Jagat Ram & Others ….Petitoners Versus State Bank of India ….Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioners: Mr.Ajay Mohan Goel, Advocate. For the Respondents: None. Dev Darshan Sud,J. None for the respondents though served. The revision has been filed against the order of the learned Additional District Judge, Fast Track Court, Shimla, on an application under Order 9 Rule 13 of the Code of Civil Procedure filed by the petitioners praying for setting aside the exparte decree passed against them. This application was moved in a suit in which a decree was passed against the petitioners for recovery of Rs.one lac. It was alleged that the petitioners herein derived knowledge regarding the suit when execution proceedings were filed by the 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 plaintiff-respondent and notice served on them. The petitioners had moved an application in the executing Court under Section 47 of the Code of Civil Procedure (hereinafter referred to as the `Code’) read with Order 21 Rule 58 for stay of proceedings. The execution petition was dismissed on 27.8.2001 and application under Order 9 Rule 13 was also dismissed on the same day. No reply has been filed to the application. The learned trial Court after recording the evidence of two witnesses, has dismissed the application simply on the ground that the suit was decreed ten years ago. It also holds that the defendants who were served through their adult members in the family and were proceeded ex-parte. The plea raised by the petitioners herein that copy of the plaint was never supplied nor was there any evidence on the record to show that service was effected in accordance with Order 5 of the Code of Civil Procedure was not considered, but the application was rejected primarily on the ground that the petitioners had purported knowledge of service. This is a very unsatisfactory way of dealing with the application setting aside ex-parte proceedings. After going through the record of the case, I am satisfied that the order, which has been passed, is not in accordance with law. It was not only incumbent upon the learned trial Court to have 3 discussed the entire evidence on the record but to have come to a positive finding after due consideration that the respondent-defendant had in- fact been served. For this purpose, not only certificate of service but the evidence of the Process Server etc. was required which was not discussed. In the circumstances, this petition is allowed. The order passed by the learned Additional District Judge (Fast Track Court), Shimla, is quashed and set aside. The application under Order 9 Rule 13 of the Code of Civil procedure will be deemed to have been allowed subject to the condition that the petitioners herein shall deposit a sum of Rs.one lac in the trial Court on 19th September, 2008 on which date the case shall proceed further in accordance with law. Needless to add that notice shall be sent to the respondents for their presence. July 23, 2008. (Dev Darshan Sud) (aks) Judge.