1. - Heard learned counsels.

2. This appeal is directed against the order dated 1.2.2011, whereby, the application of the defendants under Order 9, Rule 13 CPC has been rejected by the learned trial court. The said application was filed for setting aside the ex-parte money decree dated 20/9/2004 which was passed upon contest by the defendants firm M/s Hopewell Agencies and present defendant appellants were proceeded ex-parte as according to learned trial court despite service of summons, the defendants did not put their appearance before the learned trial court. The said application under Order 9, Rule 13 CPC was filed after six years of the ex-parte decree against the defendants in the year 2010 when execution proceedings were pending in the learned Executing Court vide application no. 10/2005 filed on 2/3/2005.

3. Learned counsel for the defendant appellants, Mr. D.K.Gaur submitted that the said partnership firm was dissolved before the money transaction in question in the year 1997-98 and same summons were not even served on these partners, who had joined the firm on 1.4.1992, therefore, the ex-parte money decree against them deserves to be set aside.

4. On the other hand, Mr. R.K. Thanvi, learned Senior Advocate urged that summons were duly served not only on the registered firm but also on the present appellant defendants, who chose not to remain present before the learned trial court and suit was duly contested by the partnership firm and no evidence of dissolution of the said firm by the Registrar of the Companies was filed and, therefore, the stand of dissolution now taken cannot be accepted. He, therefore, submitted that the liability of the partners in a suit against partnership firm is jointly and severally and, therefore, the present defendants are equally bound by the decree even though ex-parte against them.

5. Learned trial court while rejecting the application under Order 9, Rule 13 CPC has found that summons were duly issued repeatedly to these defendant-appellants and ultimately on 29/4/1999 on the basis of registered AD, the learned trial court recorded that service will be treated as complete of these defendants also and proceeded ex-parte against them. The suit was duly contested by the firm itself and the learned trial court has also found that the present application under Order 9, Rule 13 CPC has been filed after a delay of more than five years and no sufficient ground has been made out for condoning such delay.

6. Having heard the learned counsels and upon perusal of the impugned order and factual matrix, this Court is satisfied that in the peculiar facts and circumstances of the case, learned trial court cannot be said to have committed any error in rejecting the said application under Order 9, Rule 13 CPC because the suit was duly contested by the registered firm itself and no evidence of dissolution of the said firm was placed on record before the learned trial court. Admittedly, during the period in question, the present defendants were partners of the said firm and decree against a partnership firm equally binds jointly and severally all the partners and money in question can be recovered from them, therefore, the impugned order does not require any interference in the present appeal by this Court.

7. The present appeal being devoid of merit, is hereby dismissed.Appeal dismissed.

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