Mr. L.N. Mittal, J. (Oral) - CM No. 5877.CII of 2012

The application is allowed and Annexures P/4 to P/6 are taken on record subject to all just exceptions without commenting anything on merits of the revision petition.

CR No. 537 of 2010

Defendant no. 2 Rajinder Kaur has filed this revision petition under Article 227 of the Constitution of India assailing order dated 21.3.2006 passed by learned Additional Civil Judge (Senior Division), Ludhiana and judgment dated 23.9.2009 passed by learned Additional District Judge, Ludhiana thereby dismissing application of defendant no. 2 – petitioner for setting aside ex parte judgment and decree dated 21.8.2001 passed against her.

2. Respondent no. 1 – plaintiff filed suit against M/s Dhaliwal Trading Agency as defendant no. 1 and against Rajinder Kaur (petitioner) her husband Avtar Singh, Kulwant Kaur and her husband Dalbir Singh as defendant no. 2 to 5 alleging that they were partners of defendant no. 1 – Firm. In the said suit, defendants no. 4 and 5 appeared for themselves as well as for defendant no. 1 whereas defendants no. 2 and 3 were proceeded against ex parte. The suit was decreed by the trial court vide judgment and decree dated 21.8.2001, Annexure P/2.

3. Defendant no. 2 Rajinder Kaur filed application for setting aside aforesaid judgment and decree against her alleging that her husband Avtar Singh defendant no. 3 had died on 5.5.1999 i.e. even before the suit was filed on 18.1.2000 and thereupon the petitioner shifted to Canada in August, 1999 and she was never served in the suit.

4. The application was opposed by respondent no.1 – plaintiff. Averments of the petitioner were controverted. It was alleged that defendants no. 2 and 3 did not appear in the suit despite service. Various other pleas were also raised.

5. Learned trial court vide impugned order dated 21.3.2006 dismissed the application of the petitioner. Appeal against the said order preferred by the petitioner has been dismissed by learned Additional District Judge vide impugned judgment dated 23.9.2009. Feeling aggrieved, defendant no. 2 – petitioner has filed this revision petition.

6. I have heard learned counsel for the parties and perused the case file.

7. Counsel for the petitioner referring to zimini orders of the trial court as reproduced in the revision petition contended that the petitioner was never served in the suit and therefore ex parte judgment and decree against her are liable to be set aside.

8. On the other hand, counsel for respondent no. 1 – plaintiff referring to Order 30 Rule 3 and Order 21 Rule 50 of the Code of Civil Procedure (in short, CPC) contended that service of summons on any one or more of the partners of the partnership firm is sufficient service and defendant no. 2 at best could move the executing court under Order 21 Rule 50 CPC that the decree is not executable against her as she was not served with the summons in the suit.

9. I have carefully considered the aforesaid contentions. From the zimini orders of the trial court passed in the suit it is manifest that defendant no. 2 was not served in the suit. Vide order dated 18.1.2000 notice of suit and stay application was ordered to be issued to defendants for 18.2.2000. Perusal of order dated 18.2.2000 reveals that defendant no. 4 did not appear despite service and was accordingly proceeded against ex parte. On request (of counsel for the plaintiff), remaining defendants were ordered to be summoned by publication in newspaper. After publication in newspaper was effected, remaining defendants were also proceeded against ex parte on 9.6.2000 but at that very stage defendants no. 4 and 5 appeared and therefore, ex parte proceedings against them were set aside.

10. Perusal of the aforesaid orders reveals that defendant no. 2 was never served in the suit. In order dated 18.2.2000, there is no mention about reports on the summons issued for the said date for defendants no. 1 to 3 and 5. Instead thereof, straightway, on request