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5. In the aforesaid factual backdrop, the petitioner instituted an Original Suit No. 479 of 2004 before the Court of Civil Judge (Senior Division), Bulandshahr praying for a decree of specific performance of contract for execution of sale deed in respect of the aforesaid property.

6. In the suit, summons were issued to the respondent. The summons were sent to the respondent trough process server as well as by registered post. The summons sent by the registered post was refused by the respondent on 18.10.2004. The postal department returned the summons with endorsement " लेने से मना किया ".

10. The respondent after about four years from the date of ex-parte judgement and decree dated 13.9.2005 filed application under Order 9 Rule 13 CPC for setting aside the ex-parte judgement and order dated 13.9.2005 which was numbered as Misc. Case No. 14 of 2009. The respondent also filed an application under Section 5 of the Limitation Act, 1963 praying for condonation of delay in filing the application under Order 9 Rule 13 CPC.

11. In the affidavit in the delay condonation application, the respondent stated that the respondent had not refused to receive any summon sent by registered post or through process server, and the refusal has been endorsed on the registry by postman in collusion with the petitioner. He further stated that the respondent came to know about the execution of sale deed for the first time on 16.2.2009 when he visited the Lekhpal of the village to obtain khasara and khatauni of the property, and he was told by the Lekhpal about the mutation of the name of the petitioner in the revenue records. The respondent, thereafter, contacted his counsel on 18.2.2009, and after inspection of record, he found that ex-parte judgment has been passed by the Court treating the service of summons sufficient on account of refusal by the respondent to accept summons sent through registered post. The respondent immediately filed an application for setting aside the ex-parte decree. The respondent has prayed for condonation of delay on the basis of averments made in the delay condonation application detailed above.

27. In the light of parameters laid down by the Apex Court in the aforesaid judgment, now the Court proceeds to examine as to whether the explanation tendered by the respondent in delay condonation application is sufficient to condone the inordinate delay of four years in filing the application under O9R13 C.P.C.

28. In the case in hand, the respondent has denied the fact that he had ever refused to accept the notice or summons of suit through process server or by registered post, and he came to know about the ex-parte judgment as well as execution of the sale deed on 16.2.2009 when he visited the Lekhpal to obtain copy of khasara and khatauni. At this stage, it is relevant to point out that neither the delay condonation application nor the application under Order 9 Rule 13 CPC disputes the correctness of the finding recorded by the Executing Court in order dt. 1.4.2006 in Execution Case No. 30 of 2005 regarding the sufficiency of service of notice of execution case upon the respondent-judgement debtor. It is also important to note that the aforesaid two applications do not contain any averment that the Ardali of the Amin did not beat the drums at the time of delivery of possession nor theses two applications doubted the correctness of the report of the Amin. In this view of the fact, it is highly improbable that the delivery of possession of the property could have been effected by the Amin to the petitioner without knowledge of the respondent.