VIJAY KUMAR Vs. PUNJAB AND SINDH BANK

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 28-9-89 passed by the Court of Addl. Distt. Judge No. 1, Sriganganagar in civil original suit No. 19/77 (41/77) by which the learned trial Court decreed the suit for Rs. 13,216.39 against the defendant No. 3/appellant with interest @ 15% per annum till the date of decree and @ 6% per annum subsequent to passing the decree till the realisation of amount along with cost of the suit.

(2.) The brief facts of the case are that the plaintiff originally filed the suit against all the defendants including the appellant who is defendant No. 3 in the original suit. The suit was decreed by the trial Court ex parte on 19-12-79 for the above mentioned same amount with same interest i.e. @ 15% per annum till the date of decree (19-12-79), thereafter 6% per annum till the date of realisation of amount. The defendant Vijay Kumar submitted an application for setting aside the ex parte decree. That application was dismissed by learned Addl. Distt. Judge No, 1, Sriganganagar vide order dated 1-8-82, against which defendant Vijay Kumar preferred SBCMA No. 264/82 which was allowed by this Court by order dated 12-5-83 and the decree against only defendant No. 3, present appellant was set aside and the decree against rest of the defendants was maintained. The trial Court after the above order of High Court dated 12-5-83, proceeded with suit against the defendant No. 3, Vijay Kumar and ultimately again passed the decree dated 26-9-89 against defendant No. 3, Vijay Kumar also holding that defendant No. 3 was partner of the firm and is liable for amount.

(3.) In this appeal, learned counsel for the appellant vehemently submitted that there cannot be two decrees in one suit. Since the trial Court granted the decree against the firm on 19-12-79, therefore, no other decree can be granted against defendant No. 3 and it will amount to granting decree against defendant No. 3 in personal capacity, therefore, the judgment and decree of trial Court dated 26-9-1989 deserves to be set aside. The learned counsel for the appellant submitted that on facts, finding of trial Court is wrong so far as it relates to holding defendant No. 3 as partner of defendant No. 1 firm. In addition to above, learned counsel for the appellant submitted that if decree dated 19-12-79 and 26-9-1989, both will remain in force, then there will be two different decrees in the same transaction. Under the decree of 19-12-79, if it is held that defendant No. 3 Vijay Kumar was also partner, then Vijay Kumar is liable being partner of the firm for the interest @ 15% till 19-12-79, but in view of decree dated 26-9-89, the defendant/appellant Vijay Kumar will be liable for interest @ 15% per annum till 26-9-89 which is award of interest 6% more against the defendant alone than the earlier awarded interest in the decree dated 19-12-79.