LINGARAJ PAIKARAY Vs. RAGHUNATH CHHOTRAY

JUDGEMENT

(1.) The short question that requires determination in this Civil Revision is whether the decree under execution is declaratory or executory.

(2.) The petitioners and the pro forma opposite parties Nos. 2 to 4 as plaintiffs brought original suit No. 605 of 1964 in the High Court of Calcutta for declaration that the defendant Raghunath Chhotray (O. P. No. 1 here) had ceased to be a partner of the partnership business of Tapang Light Foundry and Co. with effect from 4-4-1964; that the plaintiffs along with one Satish Ch. Bhattacharjee were the only partners of the said firm with effect from that date; that the resolution dated 4-4-1964 was validly passed; that the defendant Raghunath Chhotray had no other right against the plaintiffs or the partnership firm or its assets except to receive the amount standing in his name in the books of the firm and the value of his share in the good will assessed at Rs. 5,000/- and also for a permanent injunction restraining the said defendant from asserting any right against the plaintiffs or the partnership firm other than to receive the amount standing in his name in the books of the firm and the value of his share in the good will assessed at Rupees 5,000/-. The suit was decreed on 22-4-77 in the following terms:-

(3.) On the application of the defendant-opposite party No. 1, the aforesaid decree was transferred to the court of the Subordinate Judge, Bhubaneswar for execution. The defendant filed Execution Case No. 9 of 1978 for realisation of the sum of Rs. 1,04,542.78 paise plus Rupees 5,000/- i.e., in all Rs. 1,09,542.78 paise by attachment and sale of the immovable properties of the plaintiffs. The plaintiff filed an objection under Section 47, C. P. C. challenging the executability of the decree. The objection was registered, as Misc. Case No. 9/79. The learned Subordinate Judge dismissed the same on 16-4-1979 holding that "though the decree is declaratory, it will be executable as it is passed in a suit for dissolution of partnership in which each partner has the same right". Aggrieved by the order of dismissal, the plaintiff have come up in revision.