AJAY KUMAR KOHLI Vs. KARANVIR

JUDGEMENT

(1.) A suit for recovery of Rs.4,143.85 instituted by respondent herein has given birth to this litigation which has been raging since 1979. The suit was decreed exparte in 1979. The executing court, however, vide order dated 28.7.1987 rejected decree -holderâ„¢s application for execution on the ground that decree was a nullity as the suit had been instituted by the plaintiffs in violation of terms of section 69 of Partnership Act. Aggrieved by this order, plaintiffs preferred an appeal before learned District Judge, Poonch who set aside the order of executing court, directing it to pass appropriate orders in the application for execution, The Petitioner -defendant has come up in revision against this order.

(2.) THE sole point canvassed by Mr. Kohli, LC for petitioner, is that appeal before District Judge, Rajouri against the order passed by executive court was not competent. According to him, execution court had passed order dated 28 -7 -1987 under section 47 of CPC and an order passed under this section was appealable before amendment of section 2(2) CPC, brought in by Act XI of 1983. The relevant provision before and after the amendment read as under : -

(3.) BUT the matter somehow does not rest at that. It still requires to be seen whether the executing court had passed the order rightly or wrongly ? This naturally leads me to examine the validity and legality of the order even while holding that the appeal before the District Judge was not competent.