ApDiicants Non-aDDilcants HiGHCGURT OF CHHATTiSGAI^i AT BiLASPUR CivlS Revislon No.76 of 2009 1. Santosh Kumar S/o IViadan Lai Keshsrwani, aged about 45 years, Through Speclai Power of Attorney holder Subhash Prssad 2. Basant Kumar, S/o Madan Lai Kesharwanl, aged 54 years, Both R/o Shivrinarayan, Tahsii Nawagarh, Distt.Janjgir-Cham pa Versus 1. Sonu, S/o Chitram Pat©S, aged 47 years, 2. Soncharan, S/o Chitram Patei, aged -45 years, 3. iRamcharan, S/o Chitram Patei, aged 43 years, 4. Mohifmats, Wd/o. Chitram Patei, aged 67 years, AiS R/o viiiage Khapridih, TahsiS Kasdol, DIstt. Raipur (C.G.) 5. State of Chhattisgarh, Through CoHector, Raipur. (Civii Revision under Section 115 ofthe CPC) Present:- Mr.Ravindra Agrawal, counsel for the appjicants. Mr.N.K.SVSaiviya, counsej for non-appiicants No.1, 3 and 4. IVSr.U.K.S.ChandeS, Panel Lawyer for respondent No.S/State. (SB: Hon'bie Mr. T.P. Shamia, J.) ORAL ORDER (19-10-2010) 1. Heard. 2. By thte civji revision fiied under Section 115 of the Code of Civi! Procedure^ 1908 (for short "CPC"), the appiicants have chaiienged the iegality and propriety of the order dated 15.7.2009 passed by the CJvii Judge Class-i, Baioda Bazaar, in Civii MJC No.5/2008 whereby Searned -^-- b0 Civii Judge Clas&-i by aitowing the appiteation fiied under Order 9 Ruie 13 of the CPC has set aside ex-parte judgment and decree dated 1.5.99 In Civil Suit No.116A/95 on the ground of non-servlce of summon to originai defendant Chitram. 3. Learned counse! for the applicants submts that whiis decidlng the appiication flled under Order 9 Ruie 13 of the CPC the Court beiow was under obiigation to examine the witnesses of ail the parties and to decide the case on the basls of evidence. The Court below was requlred to consider the fect that whether ser^ice has been effected upon non-applicants No.1 to 4 and whether the non-appilcants i.e. Sn the present case defendant Chitram was having knowledge of pendency of civii suit, but the Court beiow has not examined the witnesses of any of the parties and has decided the case oniy on th@ basis of isgailty of service of summon, thereby faded to exercise the jurisdjction vested on it. Learned counseS further submits that as per record of the Court beiow, firstly summon v/as served upon the original defendant Chitram on 17.1.94 bu^ even after service of fsrst summon, another summon was issued which was served upon his mother who was residing with hlm on 23.4.97 who has refused to accept, then same was affixed sn the house of the defendant. Ex-parte dscree was passed in execution proceeding. OriginaS defendant Chitram was objected the executton aiong wlth his associates. This fact shows tha$ defendant Chitram was having RnowSedge of pendency of Givii sust and decsslon of civii suit; therefore, appilcation fiied in the year 2007 for settlng aside ex-parte decree was tlme barred. 4. On the other hand, iearnsd counsei for non-appiicants No.1, 3 and 4 supported the order impugned and submits that ths Court beSow has rightiy passed the order impugned on the ground of iegaStty in servlce of process. Non-applicants No.1 to 4 were not having any Rnowiedge of pendency of civi! suit. Even the appiteants have faiSed to prove the fact that non-appticants No.1 to 4 were having Rnowiedge of pendency of the suit or decision of the suit. 5. Definitery, in the present case, the Court below has not examined any witnesses, but the fact remains that the present appiicants have not tendered any vvltness for examination §n dlscharge of their burden. The |^jt:j?|ijj^jjj;'^|^||^^ ^ii,S& ':^^^'^SMisiS^:* \i: •IB -^s^ I^E%irt|^|^|||ii|;i|^|i|i^||i^ ^aminErtionio^;an^iEft|iiiv nil||9^^ ^ll^iapplicatiQn^|orr||ei:iasis|i@f|ee^ ;anct^propriety^|sefv^irf"min|rr^ ^••I fl-^''(:lo^'.not::^finci '.:ar^1it^aU^j^ iifiiiiijiiiiff^iij;Wiiiiil^ ^iTrt»rf|^^.j;j^e|:iiOoyT|^|i^^^ ^oni'Worfailed^to^exeF|is@ithe^|nscl^^ i;C?ons|quently,5.the^j|ewision|^^^ i^i^i|sB(ljar^^it^siherebyj^isi7tlS8^^1^ -asrtorc0sts./'::'/;.^i:'',/:'"'\.'. ^^•^