BAJRANG DAL MILLS Vs. JAICHANDLAL KISHORILAL

JUDGEMENT

(1.) This is an appeal against the order of the learned Civil Judge Senior Division, Aurangabad dated 9th July, 1975, whereby he dismissed the application made by the appellant original petitioner to set aside the ex parte decree in Special Civil Suit No. 37 of 1971, passed on 29th September, 1973.

(2.) The facts giving rise to this appeal are briefly these. On 9th October, 1971, Special Civil Suit No. 37 of 1971 was filed by the respondent No. 1 firm against five defendants to recover Rs. 31,000/- and odd. At the request of the plaintiff summons were sent to the defendant by registered post, acknowledgement due. Exhibit 12 is a summon which was sent to the 2nd defendant therein viz. the present appellant describing him "as M/s. Bajrang Dal Mills, a registered partnership firm carrying on its business at Sadulpur, District Churu (Rajasthan)". The acknowledge receipt shows that somebody received it on 14th January, 1972. Similarly summons to the 3rd and 5th defendants were also sent by registered post, acknowledgement due and they were served and there is no dispute about that. The 4th defendant was deleted. On 17th September, 1973, a consent decree was passed against the 1st defendant alone for a sum of Rs. 12,400/-. The suit proceeded ex parte against the other defendants. On 29th September, 1973, as requested by the plaintiffs application Exhibit 51, an ex parte decree for only the balance of Rs. 18,880/- was passed against the 2nd, 3rd and 5th defendants.

(3.) On 22nd October, 1973, the 2nd defendant which is a registered partnership firm filed Miscellaneous Application No. 88 of 1973 for setting aside the ex parte decree. It is enough to state that the ground on which the ex parte decree was sought to be set aside was that the petitioner the original 2nd defendant firm was not duly served as required by the provisions of Order 30, Rule 3 of the Code of Civil Procedure. It was further contended that the alleged acknowledgement receipt concerning the alleged service of the summons on the firm is forged, and that, that is not the signature of any person concerned with the management or control of the business of the firm. While admitting that the 3rd and 5th defendant were served by describing them as the partners of the 2nd defendant firm, it was contended that in fact the 3rd and 5th defendant have ceased to have any connection with the affairs of the firm since 1969 and that they were staying far away from the place of the partnership business and that they have altogether ceased to take any interest in the business of the firm.