( 1 ). This is an application filed on behalf of the defendant under Order XXXVII Rule 3 (7) read with Section 151 of the Code of Civil Procedure (in short Code) for condonation of delay in filing the appearance. In this application it has been stated that the defendant came to know for the first time on 26. 8. 88 about this case when one of the partners of the defendant-firm happened to visit the office of their counsel in connection with another case. It has further been stated that after inspection of Court records it was revealed that the summons were served upon one Mr. Gupta on 6. 7. 88 who was neither a partner nor an employee of the defendant-firm as he had left employment on 30th June, 1988. It has also been stated that after inspection of record, one of the partners was confined to bed due to viral fever and the other partner was already away to Jaipur and the present application was being filed with due promptitude and it has been prayed that the delay in filing appearance be condoned.

( 2 ) BRIEFLY stated the facts of the case are that the plaintiff had filed the present suit against the defendants for recovery of Rs. 2,03,037/77p under Order XXXVII of the Code. As per the report of the process server, the defendant was served on 6th July, 1988. Since the defendant failed to enter appearance within the stipultated period, the Deputy Registrar by his order dated 19th August, 1988 directed that the suit be listed before the Court on 8th September, 1988.

( 3 ) MEANWHILE, the defendant filed the present application bearing IA No. 6106/88 which was also listed before the Court on 8. 9. 88 and on that date the plaintiff was directed to file reply to this application. The application came up for hearing before the Court on 2. 12. 88 and it was observed that it was not possible to decide this application without evidence being recorded on the disputed question of fact arising in this application. Accordingly, the Deputy Registrar was directed to record the evidence and thereafter place the matter before the Court. Pursuant to the said order, the evidence of the parties was recorded. Thereafter arguments on this application were heard on 24. 9. 93 and 4. 11. 93.

( 4 ) MR. Khurana, learned counsel appearing on behalf of the applicant/defendant submitted that the defendant was a firm and in terms of order XXX Rule 3, the service on the firm could be effected on the following two manners:-

" (A) Upon any one or more of the partners, or (b) at the principal place at which the partnership business is carried on within India upon any person having at the time of service the control or management of the partnership business there, as the Court may direct, and such service shall be deemed good service upon the firm so sued whether all or any of the partners are within or without India. "

( 5 ) HE also drew my attention to Rule 5 of Order XXX which reads as under:-

"where a summon is issued to a firm and is served in the manner provided by Rule 3, every person upon whom it is served shall be informed by a notice inwriting given at the time of such service whether he is served as a partner or as a person having control or management of the partnership business or in both characters, and in default of such notice, the person served shall be deemed to be served as a partner. "

( 6 ) RELYING on the provisions of the Code mentioned hereinabove, the learned counsel submitted that in the present case even according to the report of the process server as well as according to his statement, the summons were served on one Mr. R. P. Gupta who was working as a Clerk in the defendant-firm. He submitted that Mr. Gupta was neither a partner nor was a person having the control or the management of the partnership business nor the summons were accompanied by a notice required under Order XXX Rule 5 and as such it cannot be held that the service of the summons was effected on the defendant-firm on 6. 7. 88. In support of his contention, the l