GANGA RAM DHANPAT RAI Vs. MAHESH AGGARWAL

JUDGEMENT

(1.) The respondent-Shri Mahesh Aggarwal carries on business at Gangtok (Sikkim) under the name and style of M/s. Aggarwal Trading Company as also M/s. Laxmi Stores. On 11th January 1979, he obtained an ex-parte decree for recovery of Rs. 13,637/8OP against (i) M/s. Ganga Ram Dhanpat Rai, 472, Bartan Market, Sadar Bazar, Delhi and (ii) M/s. Assam Bengal Carrying Corporation, 10879, ldgah Road, Nabi Karim, New Delhi. His claim was for damages for the loss of consignments of goods booked by him with Judgment Debtor No. 2 on 14th October 1976 <PG>245</PG> and 18th October 1976. He applied for transfer of the aforesaid decree for. execution to the civil courts at Delhi and the necessary certificate was granted to him on 19th February 1980. Accordingly, he took out execution of the aforesaid decree at Delhi against both the judgment-debtor firms, inter alia, stating that they had not paid anything towards the satisfaction of the decree till then. It appears that the said application was dismissed in default and thereupon he moved a fresh application for execution being Ex. No. 19/83. He, inter alia, asked for execution of the decree against S/Shri Dhanpat Mal Khurana, Sat Pal Khurana and Hans Raj Khurana, all of whom were stated to be partners of J.D. firm-M/s. Ganga Ram Dhanpat Rai. He prayed for arrest and detention of all of them in civil prison after due notice in accordance with law. A notice purporting to be under Ordef XXI Rule 37K, Code of Civil Procedure (for short the Code) was accordingly issued and Hans Raj, one of the rtners of the said firm put in appearance and filed objections dated 27th August 1982 under Section 47 read with Section 151 of the Code. He, inter alia, contended that the decree obtained by the respondent-decree holder was against the firm and not against any of the individual partners in the firm, and as such the decreeholder could not proceed against the partners in the judgment-debtor firm personally and no penal action under the law could be taken against any of the partners in execution of the said decree. This objection was over-ruled by the executing Court as not tenable. This is what the learned Sub-Judge has said in the impugned order dated 5th September 1983 against which the judgment-debtor has come up in revision.

(2.) Evidently, the learned Sub-Judge has not taken notice of the provisions embodied in Order XXI Rule 50 of the Code, which reads as under: "50(1). Where a decree has been passed against a firm, execution may be granted-- (a) against any property of the partnership; (b) against any person who has appeared in his own nanrie Under Rule 6 or Rule 7 of Order XXX or Who has admitted on the pleadings that he is, or who has been adjudged to be a partner; (c) against any person who has been individually served as a partner with a summons and has failed to appear : <PG>246</PG> Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of Section 30 of the Indian Partnership Act, 1982. (2} Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in Sub-rule (1), clauses (b) and (c), as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. (4) Save as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer. (5)

(3.) On a plain reading of the foregoing provisions, it is crystal clear that a decree against a firm can be executed against any partner only if he has appeared in his own name under Rule 6 or Rule 7 of Order XXX or who has admitted on the pleadings that he is or has been adjudged to be a partner and also against any person who has been individually served as a partner with a summons and has failed to appear. Sub-rule (4) further makes it clear that a decree against a firm as such will not affect a partner who has not been served with summons to appear and answer so far as his property other than the property of the partnership is concerned. Obviously, therefore, the partners in the judgment debtor-firm, in the.instant case, can be proceeded against individually if the conditions laid in the sub-rule are satisfied. Further, leave under Sub-rule (2) of Rule 50 is required when it is proposed to proceed against the individual property of the partner other than a partner as is referred to in Sub-rule (1) Clauses (b) & (c). Sub-rule (2) Rule 50 in term, lays down that where such liability is disputed the Court may order that the liability of such person be tried and determined in any manner which any issue in a suit may be tried and determined. In other words, the decision of the Court on the point in issue shall be deemed to be final as if it a decision in the suit itself.