MOTILAL LALCHAND Vs. JIWANLAL KAILASHCHAND

JUDGEMENT

(1.) THIS is a decree-holder's second appeal arising out of an application filed under O. 21, r. 50 (2) Civil P. C. for grant of leave to cause the decree to be executed against Phoolchand, one of the partners of the judgment-debtor-Firm Jiwanlal Kailashchand. .

(2.) THE appellant Firm Motilal Lalchand obtained an ex parte decree for Rs. 2899/- on 4-2-1950 from the Court of Sub-Judge, First Class, Ajmer against the firm M/s Jiwanlal Kailashchand. On 10. 4. 1950 Phoolchand, Jiwanlal Kailashchand, partners of the defendants' firm Jiwanlal Kailashchand applied for setting aside the ex parte decree but this application was dismissed on 17-10-1952. THE order dismissing the application was upheld right upto the Court of Judicial Commissioner, Ajmer by the letter's order dated 28. 1. 1954. On 29-6-1954 the decree-holder applied for execution of the decree to the Court of Sub-Judge, First Glass, Ajmer praying that the decree be transferred to the Court of Civil Judge, Muzaffarnagar for execution. This prayer was allowed and the decree was sent to the Court of Civil Judge, Muzaffarnagar for execution with a certificate of transfer. THEreafter on 23 9-1954 the decree-holder filed execution application in the Transferee Court praying that the decretal amount may be ordered to be recovered by attachment and sale of the property of Phoolchand, one of the partners of the judgment-debtor firm. On this application the property of Phoolchand was attached, whereupon Phoolchand filed objection that he was not personally liable for the decree passed against the firm Jiwanlal Kailashchand and, therefore, his property could not be attached and sold in execution of the decree. This objection was allowed by the Additional Civil Judge, Muzaffarnagar by his order dated 4. 12. 1957. It further appears that in consequence of the aforesaid order by the Muzaffarnagar Court the execution application pending before it was also dismissed. THEreafter the decree-holder, filed an application under O. 21, r. 50 (2) C. P. C. on 31-3-1958 in the Court of Civil Judge, Ajmer praying that leave may be granted to the decree-holder to cause the decree to be executed against Phoolchand Baijnath, partners of the judgment-debtor-Firm Jiwanlal Kailashchand, both of whom stoutly opposed the application by filing separate replies dated 10-7-1958. THE main point taken by them was that the application filed by the decree-holder was barred by time.

(3.) THE last objection raised by the learned counsel for the respondent that the order of the Muzaffarnagar Court dated 4 12-1957 operated as res judicata in the present proceedings is also devoid of substance. It may be observed that all that the Muzaffarnagar Court decided was that the decree-holders could not proceed against Phoolchand objector personally under 0,21, r. 50 (1) CPC and that the case did not fall under Cl. (c) of O. 21, r. 50 (1) C. P. C. It has nowhere decided that it was incompetent to grant leave under O. 21, r. 50 (2) C. P. C. to cause the decree to be executed against Phoolchand as partner of the judgment-debtor firm though it has observed that "the case is not covered by O. 21, r. 50 (2) CPC. As the decree-holders do not seek leave to proceed against Phoolchand and that no application has been made to the Court for permission being granted to proceed against him as partner of the judgment debtor firm" This observation, however, does not mean that the Court had decided that it was incompetent to grant leave to cause the decree to be executed against Phoolchand. I, therefore, fail to see how the order of the Muzaffarnagar Court dated 4-12-1957 can be used as a bar against the maintainability of the present application dated 31. 3. 1958 on the principle of res judicata?