IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 6.4.2009. S.B. CIVIL WRIT PETITION NO.13369/2008 Rameshwar Sharma Vs. Radhey Shyam Sharma HON'BLE MR. JUSTICE DALIP SINGH Shri Mahendra Goyal, for the petitioner. The petitioner has challenged the impugned order dated 14.8.2008 by which the application submitted by the defendant for setting aside the exparte decree dated 11.11.2003 under the application under Order 9 Rule 13 CPC has been allowed. Admittedly the service upon the defendant was affected by substituted service by publication of the notice in Daily Newspaper (Hindi) Dainik Nav Jyoti being published from Jaipur. The defendant filed the application under Order 9 Rule 13 CPC alleging that he came to know of the aforesaid decree only on 11.2.2005 when in execution of the decree the property was sought to be attached and thereafter the defendants filed an application on 22.2.2005. The limitation for filing of the application was claimed w.e.f. date of knowledge i.e. 11.2.2005. The ground that was alleged was that the service having been affected by the publication of the notice under Order 5 Rule 20 CPC in the Daily Newspaper Dainik Nav Jyoti, the same is not circulated in the locality where the defendants residence. It was contended that under Order 5 Rule 20, Sub Rule 1A the newspaper should be one which has circulation in the locality in which the defendant is last known to resides. The defendant non petitioner produced before the learned trial court evidence, apart from his own statement of one Parasram Saini who run the newspaper agency in the name and style of Saini Newspaper Agency in the village where the defendant is said to have resided and the said witness clearly deposed before the court that only two newspapers Dainik Bhaskar and Rajasthan Patrika are being circulated by him in the locality or the village on defendant and not Dainik Nav Jyoti. Learned counsel for the petitioner submitted that the petitioner plaintiff in his evidence produced a certificate issued by one Kamal Kumar Naushadar, Proprietor Kamlesh News Paper Agency to show that the newspaper “Dainik Nav Jyoti” is circulated in the village where the defendant resides. In the present case it is clear that the service was not affected on the defendant in person but was effected by substituted service under Order 5 Rule 20 CPC. The non petitioner came to know of the decree dated 11.11.2003 only on account of the execution of the decree on 11.2.2005. On that account the limitation period of 30 days provided under Article 123 of the Limitation Act 1963 would not apply in view of the explanation provided under Article 123 of the Limitation Act 1963. The said explanation reads as follows : “123. To set aside a decree passed exparte or to re-hear an appeal decree or heard exparte. Thirty days. The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. Explanation.- For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service.” In the instant case on account of the substituted service having been effected upon the defendant by publication of the notice the period of 30 days limitation as provided under Article 123 is not applicable and the learned trial court has accepted the plea of the defendant that the defendant acquired knowledge of the passing of the decree against him only by virtue of the execution proceedings on account of the attachment of the property being carried out on 11.2.2005 and the application under Order 9 Rule 13 CPC was filed on 22.2.2005. The defendant produced the owner of the Newspaper Agency in the village where the defendant is resided Parasram AW2. He has admitted to the fact that daily Hindi news paper “Danik Nav Jyoti” is not being circulated in the village where the defendant resides and only two newspaper other than the newspaper Dainik Nav Jyoti are having circulation in the area where the defendant resides. The learned trial court has relied upon the aforesaid testimony as opposed the testimony of the witness of the plaintiff petitioner and has exercised its discretion in favour of the defendant. There is no jurisdictional error in the same. It cannot therefore be said that the impugned order dated 14.8.2008 suffers from any jurisdictional error so as to call for any interference in writ jurisdiction. However, I am of the view that in cases such as above, the plea of the plaintiff petitioner that some times the defendants deliberately try to avoid appearance before the court and would later on resort to the remedy of seeking the relief of setting aside exparte decree only to delay the execution and the reaping of fruits of the decree cannot be ruled out. In such cases therefore the learned trial court is entitled to keep in mind the aforesaid facts and would in a given case be justified while allowing the application under Order 9 Rule 13 CPC to pass necessary orders with a view to protect the interest of the decree holder while passing an order for setting aside the exparte decree having regard to the particular facts of the case to protect the interest of the decree holder also by passing conditional orders for furnishing adequate security or costs etc. In the facts and circumstances leave is granted to the petitioner to apply to the learned trial court for a direction, for submission of reasonable security for securing the decreetal amount. In case such an application is filed the learned trial court is expected to decide the same in accordance with law. This writ petition is accordingly disposed of. (DALIP SINGH),J, Ramchandrkhatri,PS