PUNJAB NATIONAL BANK Vs. RAJ MAL PAHAR CHAND

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings. On 12-12-1947, the Punjab national Bank Limited, appellant before me, obtained a decree against firm rajmal-Paharchand. The decree, however, was not fully satisfied. On 9-11-1952 present application was submitted by the decree-holder under Order XXI Rule 50, civil Procedure Code. On notice of the application, the respondents appeared and raised various objections. One of the major objections raised by them was that they were members of a joint Hindu family firm and therefore the decree could not be executed against them in their individual capacity. Before the executing court, counsel representing the appellant-Bank made an admission that the judgment-debtor was a joint Hindu family firm.

(2.) IT is an admitted fact that in an agreement dated 26-2-1940, the judgmenldebtor-firm is described as a joint Hindu family firm. A supplementary agreement was executed on 5-6-1948. This is signed by all the three respondents and below their signatures word 'partners' is written. On the basis of the latter agreement, learned counsel, for the appellant argues that they being partners, Order XXI Rule 50, Civil Procedure Code, is applicable. The other side places reliance on the admission of the counsel for the Bank wherein he had admitted that the respondents were a joint Hindu family firm. No doubt, counsel for appellant-Bank later submitted an affidavit showing therein that he had made that admission under a mistaken belief and in absence of instructions from the Bank. At the same time learned counsel for the respondents had admitted only the signatures of the respondents on the later agreement. Learned counsel for the appellant-Bank from this argues that he should be allowed to withdraw this admission as it was made in the absence of instructions from the Bank and under a mistaken belief. On the other hand it has been pointed out by the respondents' counsel that the admission of a counsel made during proceedings is binding. On this he has cited several authorities.

(3.) THE main question contested by the parties is the applicability of Order XXI Rule 50. Learned counsel for the appellant-Bank argues that it has application and for this contention he places reliance on Alekh Chandra v. Krishna Chandra Gajapati narayan Deo, AIR 1941 Pat. 596, in which it was held "order 21 Rule 50 relates to execution and must be read with those rules of Order 30 which relate to suits by or against firms or partnerships. Rule 10 of Order 30 applies to a joint Hindu family trading firm also. Therefore, the procedure under Order 21 Rule 50 applies to the execution of a decree against such a firm.