SANWAL DAS GUPTA Vs. BABUBHAI BHAWANJI JHAVERI

JUDGEMENT

(1.) The only question in this case is whether the Court, to which a decree has been transferred for execution, is competent to entertain and decide an application under Order XXI, Rule 50 (2) of the Code of Civil Procedure, and it has been referred to us because of some conflict of judicial opinion on the question.

(2.) The decree in this case was obtained against a partnership firm from a Court of Bombay. It was transferred for execution to the Court of a Subordinate Judge at Delhi. The decree-holder then made an application in the Delhi Court, seeking execution against a partner of the judgment-debtor firm, and that partner, being Sanwal Dass Gupta, objected on the ground that such an application could be entertained only by the original Court which made the decree. The executing Court overruled that objection, holding that it had jurisdiction to entertain the petition and decide whether execution should be allowed against the partner. Hence this revision petition by Sanwal Dass Gupta.

(3.) On behalf of the petitioner, reliance is placed on the language of Sub-rule (2) of Rule 50 of Order XXI of the Code of Civil Procedure. It says - 50. (2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in Sub-rule (1), Clauses (b) and (c), as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined." The argument is that because this rule says that an application may be made to the Court which passed the decree, the inference must be that such an application cannot be made to the transferee-Court. This argument, however, ignores a clear provision contained in Section 42 of the Code of Civil Procedure, which is in these terms -