GULAM ABBAS Vs. NEW GANESH FINANCE CO

JUDGEMENT

(1.) This is an execution appeal under Sec. 47 read with Sec. 96 CPC against the order of learned Addl. District Judge, Ajmer, dated 19 -2 -1973 in Civil Misc. Application No. 18/68 (98/70).

(2.) Briefly, the facts of this case are that M/s New Ganesh Finance Company, Beawar decree -holder filed an application under Order 21, Rule 50(2) CPC requesting that permission be granted for executing decree against the appellant judgment debtor personally on the ground that a decree for Rs.49,254.00 - with pendente lite and future interest and costs, was passed on 23 -1 -1967 in Civil Suit No. 21/63 against the firm M/s Zakir Hussain Ghulam Abbas, Zakir Hussain and Ghulam Abbas were the partners of the said firm. The decree was put for execution in Ajmer and was transferred to Udaipur Court. The respondent Company M/s Zakir Hussain Ghulam Abbas entered into hire purchase agreement with M/s New Ganesh Finance Company, Beawar. When the disputes arose between the parties as per the agreement of hire -purchase, the same were referred to the Arbitrator, who passed an award dated 6 -7 -1968 against Firm M/s Zakir Hussain Gulam Abbas for an amount of Rs.49,254.00 -. The award was made rule of the court by judgment and decree dated 3 -1 -1967 by the court of learned Senior Civil Judge, Ajmer. This decree was sought to be executed personally for recovery of the above amount against the appellant Gulam Abbas in the capacity of partner of the said Firm. Learned District Judge, Udaipur vide its judgment dated 13 -11 -1967 held that the decree was executable against the appellant personally also. The appellant filed an appeal against this order in this Court, which was allowed vide judgment dated 30 -4 -1968 and a direction was given in the same that fresh proceedings be filed under Order 21, Rule 50(2) CPC. The appellant shall have right to raise objections against the personal execution of the decree against him and it shall not be so executed unless leave was granted by the executing court for the same. On filing of fresh application, the appellant disputed that no hire purchase agreement which contained the arbitration clause had been executed by him and that Zakir Hussain had no authority to execute such an agreement for arbitration. It was, therefore, contended that when very existence of the agreement was disputed before the Arbitrator the Arbitrator had no jurisdiction to decide the dispute referred to him. Hence the proceedings before the Arbitrator and the award were wholly without jurisdiction and absolute nullity. Therefore, no execution can be filed on the basis of such award personally against the appellant. It was also contended that the learned lower court has erred in holding that the appellant was the partner of Firm M/s Zakir Husain Gulam Abbas and had wrongly placed reliance on documents Ex. Nos. 1 to 5. It was further contended that the judgments Ex. 6 to Ex. 9 were also wrongly relied upon. It was also contended that the Firm M/s Zakir Hussain Gulam Abbas never came into existence and remained only in papers and that the appellant was never a partner of the said firm. It was urged that it must be proved that the firm carried on business and the partners had agreed to share the profits. It was, therefore, urged on the basis of above objections that the appellant was not personally liable for execution of the decree and, therefore, the order of learned Additional District Judge, Ajmer be set aside.

(3.) 1 have heard the arguments of learned Counsel for the appellant, Shri R.M. Lodha and have also gone through the record and the documents on file. None has appeared on behalf of the respondents.