JAYANATILAL MOHANLAL Vs. NARANDAS AND SONS

JUDGEMENT

(1.) This is a revision application filed by a retired partner of the firm against which firm money decree has been passed by the Court. After passing of the decree, the decree-holder wanted to execute the same against the petitioner on the ground that the was a partner of the firm at the time of the suit transaction. The petitioner claims to have retired from the partnership. The plaintiff filed the requisite application to the Executing Court under Court. 21, R. 50 (2 of the Civil P. C. for bringing on record the petitioner and other partners of the defendants firm so that he could execute the decree against them individually. This was done by him by taking out a notice in that behalf. This notice was opposed by the present petitioner on various grounds. all of which have been negatived by the trial Court and an order has been passed that the execution should proceed against the present petitioner. It is this order which the petitioner wants to be revised by this Court.

(2.) The facts relevant for the purpose are as follows:- For the sake of convenience, the parties will be referred to with reference to their position in the trial Court save and except that the petitioner, who was respondent No.4 in the trail Court, will be referred to as 'petitioner' only. One Miss Geetaben N. Jatania who was defendants No. 2 in the suit had deposit a sum of Rs. 7,000 with the firm M/s Damodar Vithaldas, which was defendants No. 1 in the suit. The firm/ defendants No. 1 executed a despot receipt in favour of said Miss Jatania/ Defendants No. 2. It is not disputed that said Miss Jatania/ defendants No. 2 assigned her right, title and interest in the said deposit receipt in favour Court the plaintiff. About the next fact there is a slight ambiguity. Contention of the present petitioner is that he retires from the partnership firm/ defendants No. 1 on 31-10-1976. However, this ate is also referred to as 24-10-1976 in the judgment of the trail Court. Whatever that may be, it is an admitted after that the present petitioner retired from the partnership firm/ defendants No. 1 after the execution of the deposit receipt by the firm in favour of defendants No. 2. On 15-10-1979 the plaintiff filed a suit against the firm/ defendants No. 1 and also against defendants No. 2 Miss Jatania for recovery of the amount due under the deposits. In the said suit decree was passed on 17-6-1980 against the firm/ defendants No. 1 for a sum of Rupees 9,992.91 ps. The decree directed that amount was to be refunded by instalment of Rs. 300 each. The first instalment was to be paid on or before 15th day of each month. On 26-9-1980, the plaintiff took out Miscellaneous Notice No. 1781/80 against the present petitioner Jayantiala Mohalal , who was shown a respondent No. 4 in the said notice and against some other respondent . By the application in question the plaintiff sought to bring on record the partners of the firm/ defendants No.1 so that the plaintiff could execute the defendants against the said partners also. Evidently, the application was made under Court. 21. R. 50 (2) of the Civil P. C. The learned Judge who head the notice, however, appear to have taken the view that such an application was not competent because the original judgment-debtor, defendants No. 1 had not made any default in payment of the decretal instalment. The learned Judge observed that the original judgment-debtor. defendants No. 1, was always ready and willing to pay the amount. I may state here that the fact that on the date when the said application viz. Miscellaneous Notice No. 1781/80 was made, the fir/ defendants No. 1 was ready and willing to pay the amount of decretal instalment, is not disputed before me. As a matter of fact is has been the specific contention of the present petitioner in the trial Court that the original firm/ defendants No. 1 against whom the defendants was passed had in fact offered the amount of the instalment to the plaintiff but that the plaintiff themselves refused to accept the amount. This position appears to be to have been accepted by the learned Judge also. Evidently, according to the learned Judge. the decree was an instalment decree and question of the exception of the decree would not arise unless there was any default made in payment of any instalment. Since no default was proved to have been made by the defendants-firms, question of execution of the decree does not arise. It was with this reasoning. evidently, that the learned Judge dismissed the said notice by order dated 29-10-1980.

(3.) On 24-11-1980, the plaintiff took out second notice Miscellaneous, Notice No. 2260/80 to bring the names of persons mentioned as respondent Nos. 1 to 5 on record in the decree. Evidently, this application was also made under Court. 21, R. 50 (2). Respondent No. 4 is none other than the present petitioner and the present petitioner and other respondent were sought to be brought on record on the ground that they were the partners of the jurisdiction-debtor firm. It is the order on this application that has given rise to the present revision application. Only the present petitioner and original respondent No. 5 appeared in response to the notice. The present petitioner filed his reply on behalf of original respondent No. 5. To the rely there was rejoinder filed by the plaintiff- decree-holder and to the rejoinder the present petitioner filed a surrejoinder. It is unnecessary to set out the contentions raised to the reply and surrejoinder separately. The substance of the contentions of the present petitioner in reply to the plaintiff notice was as follows: