HARISHANKAR LATH Vs. GENERAL MERCHANTS LTD

JUDGEMENT

(1.) THE judgment -debtors in an execution proceeding filed this appeal against the order of the learned Subordinate Judge of Sambalpur dismissing their objections to the execution of the decree.

(2.) THE order appealed against was passed in two miscellaneous cases arising out of the execution of a decree obtained by the decree -holder, The General Merchant Limited of Bombay, against a firm Jayanarayan Trilokchand of Sambalpur in summary suit No. 180 of 1948 of the Bombay City Civil Court. The decree was transferred for execution to the Court of the Subordinate. Judge of Sambalpur. Execution was levied against the movable property of the firm Jayanarayan Trilokchand. Notice on the execution application was issued against the firm represented by Madanlal Lath. Madanlal Lath was the son of Trilokchand. Madanlal filed an application under Section 47, Civil P. C. in Misc. Case No. 33 of 1953 alleging that Jayanarayan Trilokchand was the name of the firm run by his father who died about ten years prior thereto and that after his death,' the business was wound up; that he, the applicant, was neither the 'proprietor, nor a member of the above said firm and was running a new business under the name and style of Madanlal Harisankar for the last 8 years, that the decree -holder obtained a decree in execution against a non -existent firm and against dead persons, and as such the decree was null and void and was not executable against him. During the pendency of the enquiry into the above application, another application was filed by the sons of Madanlal in Misc. Case No. 56 of 1953 in which the allegations were different fromthose in the application filed by Madanlal. The applicants were the four sons of Madanlal. They contended that the firm Jayanarayan Trilokchand was a joint Hindu family firm and that after the death of Trilokchand, the applicants along with their father Madanlal as member of a joint Hindu family inherited the properties and were in possession of the same running the firm in another name, Madanlal Harisankar; that they were not parties to the decree and as they constituted a joint Hindu family firm, the members of the family who were not mentioned in the decree could not be liable for the decretal debt.

(3.) MR . R. Das, the learned counsel for the appellant contended that the decree was a nullity, and cannot be executed, and that the learned Subordinate Judge erred in holding that Order 30, Civil P. C. applies to the present case. His contention is that Order 80, Civil P. O, applies only to a firm coming into existence on contractual relationship and that it does not apply to a Hindu joint family concern, which cannot be considered to be a firm and the members cannot be properly described as partners within the meaning of Order 30, Civil P. C. He also contended that Trilokchand and Jayanarayan having died, the decree was against a dead person and that the firm Jayanarayan Trilokchand was not in existence.