DUBAGUNTA SUBRAHMANYAM, J.

( 1 ) ORDER :this revision petition is filed against the order dated 19-6-2001 in IA no. 1743 of 2000 in OS No. 234 of 2000 on the file of XI Junior Civil Judge, City Civil court at Secunderabad.

( 2 ) A partnership firm by name M/s. Pasham Balarajaiah sons is the revision petitioner in this CRP. It is filed by one of the partners of the firm by name P. Ramakrishna. The respondent-plaintiff filed a suit in O. S. No. 234 of 2000 seeking eviction of the partnership firm from the suit premises. The partnership firm was sued represented by one of its partners namely P. Ramakrishna. The Trial Court fixed 28-6-2000 as the date for the presence of the defendant before the Court and accordingly issued summons. The Process server of the Court served the notice on p. Prabhakar on 5-6-2000. The said P. Prabhakar endorsed on the summons that he received summons on behalf of his brother. P. Ramakrishna is the own brother of the said P. Prabhakar. This is not in dispute. On 28-6-2000, the Court treating the summons as duly served on the firm, as the firm was called absent, set ex parte the defendant-firm and subsequently passed an ex parte decree for eviction on 20-7-2000. After obtaining the ex parte decree, the respondent-plaintiff executed the said decree. The Executing Court delivered possession of the suit property to the respondent-plaintiff on 6-11-2000. On 17-11-2000 the partnership firm filed a petition under Order 9 Rule 13 of CPC requesting the Trial Court to set aside the ex parte decree dated 20-7-2000. The firm filed another petition in IA No. 1743 of 2000 under Section 5 of the Limitation Act requesting the Trial Court to condone the delay of 89 days in filing the petition under order 9 Rule 13 of CPC to set aside the ex parte decree. The said petition which was filed under Section 5 of the Limitation act was opposed by the respondent-plaintiff. The Trial Court dismissed the said petition on merits on 19-6-2001. Aggrieved by the said order, the partnership firm filed the present revision petition.

( 3 ) THE revision petitioner did not dispute that P. Prabhakar who received the summons is the brother of P. Ramakrishna. The learned Counsel for the revision petitioner invited the attention of this Court to the provisions contained in Order 5 Rules 12 and 15 of the Code of Civil Procedure. Those two provisions read as follows:"rule 12 service to be on defendant in person when practicable, or on his agent :- Whenever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. RULE 15 where service may be on an adult member of defendant s family :where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation : Servant is not a member of the family within the meaning of this Rule. "the learned Counsel contended seriously that P. Prabhakar cannot be treated as an agent of the partnership firm. He further contended that as partnership firm is the defendant, P. Prabhakar cannot be treated as an adult member of the family of the defendant. It is his contention that as summons were not served on the partnership firm, the ex parte decree is liable to be set aside and the revision petitioner by way of abundant precaution filed a separate application under Section 5 of the Limitation act seeking the condonation of delay in filing the petition under Order 9 Rule 13 cpc.

( 4 ) I have carefully considered the submission made on behalf of the revision petitioner. In the circumstances of the present case, for the reasons to be given hereunde

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