LAXMI SARDA Vs. KHUSHAL CHAND KHIMJI AND COMPANY

JUDGEMENT

(1.) A Summary Suit No. 11879/98 was filed by M/s. Khushal Chand Khimji and company who has been arrayed as respondent No. 1 in this appeal, before the high Court of Judicature at Bombay. The said suit was filed under Order xxxvii Rule 2, CPC against M/s Laxmi Narayan Radha Vallabh and company, a partnership firm and others. An ex parte decree was passed by bombay High Court on 5-6-2000 against the defendants. In order to realize the decretal amount, execution application was submitted before the High Court of bombay, however, the decree was transferred to District Judge, Hoshangabad alongwith a certificate under Rule 6 of Order XXI, CPC, by Bombay High Court by exercising powers under Section 39 and Order XXI Rule 5, CPC. Since the judgment-debtor actually resides at Pipariya, the District Judge, Hoshangabad transferred the said decree to Additional District Judge, Sohagpur having pecuniary jurisdiction to execute the decree.

(2.) IN the said summary suit, one Ram Gopal Kabra was one of the defendants. The present appellant is daughter of said Ram Gopal Kabra. The appellant filed objections against the attachment of the alleged HUF property under Order XXI Rule 58, CPC. The objections of the appellant are that Ram gopal had already died and without impleading the legal representatives of said ramgopal Kabra, the suit was decided and decreed in ex parte and therefore, it amounts to nullity, since the decree has been passed against a dead person. Her another objection is that Ram Gopal Kabra was one of the partner of partnership firm M/s Laxmi Narayan Radha Vallabh and Co. , who is the judgment debtor and if any money decree has been passed against the firm, it cannot be executed by attaching the property of HUF, therefore, the property be released from attachment.

(3.) SHRI U. K. Shukla, learned Counsel for the decree holder / respondent No. 1 submits that reply against objections of appellant/objector under Order XXI Rule 54, CPC was filed by the decree holder refuting the averments and it was submitted that the decree has been rightly passed and the same is rightly being executed by attaching the immovable property of the judgment debtor.