TOPANMAL CHHOTAMAL Vs. KUNDOMAL GANGARAM

JUDGEMENT

(1.) This appeal by special leave is against the judgment of the High Court of Judicature at Allahabad dated February 10, 1952. The facts lie in a small compass, and briefly stated they are as follows:

(2.) Sometime in 1947 the appellant filed a suit, Suit No. 533 of 1947, on the Original Side of the Chief Court, Sin, at Karachi, against the firm of Kundomal Gangaram, the respondent No. 1 herein, for the recovery of a sum of money alleged to be due to the appellant from the said firm. The firm was sued through one Kundomal alleged to be one of the five partners of the said firm, and the service of summons was effected on him as partner of the said firm. None of the other partner was impleaded individually in the suit. On November 8, 1948, the Chief Court, Sind, decreed the suit against the firm. By the time the decree came to be passed, India was partitioned into two Dominions, and the Chief Court, Sind, became a foreign Court and, therefore, the decree, being one passed by a foreign Court, became inexecutable in India. Thereafter, the appellant filed a suit in the Court of Civil Judge, Agra, being Suit No. 205 of 1949, on the basis of the said foreign judgment. To that suit the firm of Kundomal Gangaram was made the first defendant, represented by its partner Kundomal, and respondents 2 to 6, the other partners of the firm, were impleaded as defendants 2 to 6. The learned Civil Judge, Agra, decreed "the plaintiff's suit for Rs. 12,140-1-0 with costs and future and pendente lite interest at 3 per cent per annum against defendant No. 1 and such property of the firm M/s. Kundomal Gangaram as may be found in the hands of defendants 2 to 6". No appeal having been filed against that decree, it has become final. In execution of the decree, the appellant attached certain properties of the respondent-firm at Agra mainly comprising of a shop and the assets therein. Respondents 2 to 6 objected to the attachment on the ground that the shop and the articles therein were not the assets of the firm Kundomal Gangaram, but were the personal properties of defendants 2 to 6. The learned Civil Judge held that the assets sought to be attached were not the assets of the firm, and that though the shares of respondents 3 to 6 therein were not liable to attachment, the one-fifth share of Kundomal Gangaram in the firm was validly attached. Kundomal Gangaram appealed to the High Court against that part of the order of the Civil Judge which was against him, and the decree- holder filed cross-objections in respect of that order in so far as it excluded the liability of the other four partners. It may be mentioned that neither to the appeal nor to the cross-objections, the respondents 3 to 6 were made parties. The High Court dismissed the cross-objections on the ground that respondents 3 to 6 were not parties to the appeal or the cross-objections. The High Court also allowed the appeal filed by the partners of the firm Kundomal Gangaram on the ground that the decree was only against the firm and its assets, and, therefore, it was not executable against the personal properties or the share or shares of the partners in the joint family property. The decree- holder filed the present appeal for establishing his right to proceed in execution against the personal properties of respondents 2 to 6. The learned Attorney-General, appearing for the appellant, contended that on a true construction of the decree in Suit No. 205 of 1949, on the file of the Court of Civil Judge, Agra, it must be held that the decree was made against the firm without any limitations, and, if so construed the appellant would be entitled to execute the decree under Order XXI, rule 50, Civil Procedure Code, against the personal assets of the partners of the firm, respondents 2 to 6. To appreciate this contention it would be convenient to read, at this stage, the relevant provisions of the Code of Civil Procedure. Order XXI, rule 50:"(1) where a decree has been passed against a firm, execution may be granted-

(3.) So stated the legal position is unexceptional and indeed it has not been disputed by the learned counsel for the respondents, but what is contended is that the decree sought to be executed expressly excluded personal liability of the partners and, therefore, notwithstanding the provisions of Order XXI, Rule 50, the executing Court is precluded from going behind the decree. The decree consisted of two parts. The first part of the decree reads: