NARAIN GURWALA Vs. VADI LAL ICHCHA CHAND

JUDGEMENT

(1.) THIS is a petition for revision by one Shri Shri Narain Gurwala, Advocate, Delhi, against the order of the executing Court entertaining an application of the decree-holder under Order XXI, Rule 50 (2) of the Civil Procedure Code. A money decree was passed by the Judge, Small Cause Court, Ahmadabad, in favour of Vadi Lal Ichha Chand against Messrs Parmehari Dass Pad am Chand on the 19th of December, 1958. This decree was transferred for execution to the Court of Judge Small Cause Delhi. In this Court the decree-holder made a petition under Order XXI, Rule 50 (2) of the Code praying that leave be granted against the petitioner and he be adjudged as one of the partners of the judgment-debtor firm. The petitioner's stand in the Court was that the application could only be entertained by the Court which passed the decree and not by the transferee Court. This contention has been negatived by the Court below and hence this revision.

(2.) IT is no doubt true that there is a conflict of judicial decision on the matter. The Patna High Court in Kalu Ram v. Sheonand Rat Jokhi Ram, AIR 1932 Pat 323 dissented from the decision of the Allahabad High Court in Sital Prasad v. Clements Robson and Co. , AIR 1921 All 199 (2) and held that an application under Order XXI, Rule 50 (2) is only entertainable by the Court which passed the decree and not by the transferee Court. But this view has not been accepted by the Punjab High Court. In this connection, reference may be made to Abdul Hamid v. Dhanpat Mal Diwan Chand, AIR 1931 Lah 507 (2), Bombay Company Ltd. v. Kahan Singh, AIR 1931 Lah 736 and E. D. Sasson and Co. , Ltd. v. Shivjiram Devi Das, AIR 1929 Lah 228. The petitioner contends that these cases did not in fact go against him because they were cases under an award and he contends that when an award is made a rule of the Court, the Court does not pass a decree and that these decisions were distinguished by the Patna High Court on this ground. However, I am unable to agree with this contention for the simple reason that the matter now seems to have been finally settled by the Supreme Court in Jai Narain Ram Lundia v. Kedar Nath Khetan, 1956 SCR 62. At p. 70 ( (S) AIR 1956 SC 359 at p. 363) of the report, their Lordships of the Supreme Court observed as under: