Prakash Krishna, J.;-

Questioning the legality and validity of the orders dated 27th of August, 2008 passed by the Additional District Judge, Court no.1, Varanasi in Misc. Case No.115 of 2004 and order dated 7th of May, 2004 passed by Civil Judge (Sr. Division), Court No.3, Varanasi in Misc. Case No.5 of 1995, the present writ petition has been filed also for quashing the judgment and decree dated 25th of October, 1986.

2. The only point involved in the present writ petition is whether the Courts below have committed any illegality in refusing to condone the delay of about ten years in filing the application for setting aside the exparte money decree.

3. The petitioner no.1 is a partnership firm and the petitioner no.2 is one of its partners. The other partners have been impleaded as respondent nos.2 to 6 herein as proforma defendant respondents.

4. The original suit no.544 of 1983 was instituted by the Karnataka State Silk Co-operative, Marketing Federation Ltd. Against M/s. Hajee Barkatullah & sons, a partnership firm, through its one of partners Nooruddin. The partners of the Firm were also impleaded as defendant nos.2 to 7. The suit was brought on the allegations that the defendants in connection with their business purchased silk goods of the value of Rs.1,46,674.71 on credit on different dates, as described in the various paragraphs of the plaint. But they have failed to pay the same. The cheques have been dishonoured. A decree for a sum of Rs.2,07,039.36 including interest as also pendentelite and future interest was claimed. The summons and notices were issued to the defendants of the suit. The notice was served personally on Nooruddin (petitioner no.2) herein. It was also served on the other defendants. Service of notice on other defendants is not a matter of dispute. It appears that Mohd. Asraf and Mohd. Mustaq who were impleaded as defendant nos.6 and 7 came out with the case that they have nothing to do with the said firm as they are not partners on the relevant dates. The suit was contested by the defendant nos.6 and 7 namely Mohd. Asraf and Mohd. Mustaq by filing written statement. The issues were struck. As many as five issues were framed in the light of pleadings of the parties and the suit was ultimately decreed on 25.10.1986 against the defendant nos.1 to 5. It was dismissed against the defendant nos.6 and 7 on the finding that their names were not included as partners in the certificate of registration of the firm with the Registrar of the Firms, Chits and Funds.

5. On 20th of January, 1995 the petitioners herein filed an application which was registered as Misc. Case No.5 of 1995 under Order 9 Rule 13 C.P.C for setting aside the exparte decree on the allegations that the petitioner no.2 when he came to Varanasi on 21.12.1994 was told that an execution case No.20 of 1989 is going on. The house property no.J.1/130-A, Sheshman Bazar, Varanasi and property no. J.4/39 Hanstal, Varanasi are reported to have been auctioned in the said case. He thereafter examined the record of the execution case and filed an application. It was set out therein that the petitioner no.2 was never served with any summons in the Original Suit No.544 of 1983 nor with any notice in the execution case. It was further pleaded that on the inspection of the file of the original suit it also transpired that summon is reported to have been delivered to him. But the said report of the process server is false, fabricated and forged in as much as the signature appearing purported to have been signed by him on the receipt of the summon is not his signature and the said signature is forged. Plea that the opposite party nos.4 to 6 (Aminuddin, Mohd. Asraf and Mustaq Ahmed) are not on good terms with him and they have been acting in collusion with the decree holder against him was also put forward. No application for condonation of delay was filed.

6. The proceedings were contested by the plaintiff by denying the contents of the application and the affidav

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