PULIN BEHARI PAL Vs. ISWAR CHANDRA PAL FIRM

JUDGEMENT

(1.) The facts giving rise to this appeal may be shortly stated as follows. The respondent before us which is a firm carrying on business under the name and style of late Iswar Chandra Pal obtained a money decree in the original side of this Court against another firm known as late Ram Krishna Pal and late Kali Krishna Pal for a sum of Rs. 18,456 annas odd on 6 March 1931. In the beginning of 1943, the decree was transferred for execution to the Court of the Fourth Subordinate Judge at Dacca, and the application for execution was filed by the decree- holder in that Court on 12 February 1943. In this petition, the decree-holder prayed for realisation of the decretal amount by attachment and sale of certain moveable properties belonging to the present appellants who were made parties to the execution proceeding as judgment debtors Nos. 2 to 6 on the allegation that they were partners of the firm against which the decree was obtained.

(2.) The appellants resisted the application for execution substantially on the ground that the decree could not be executed against them personally without leave of the Court which passed the decree as contemplated by Order 21, Rule 50 (2), Civil P. C., and that it was not within the competence of the Court to which the decree was sent for execution to grant that leave. The learned Subordinate Judge by his order dated 3 July 1943, dismissed the appellants petition of objection and directed that the matter would be heard by him under Order 21, Rule 50 (2), Civil P. C. It is against this order that the added judgment-debtors have come up on appeal to this Court. It is not disputed that the decree-holders obtained a decree against the defendant firm in the" firm name and that the present appellants were neither individually served with summons nor did they appear in the suit and certainly did not admit or were adjudged to be partners. As the decree-holder wants to execute the decree not against the partnership property but personally against the appellants who do not come within the purview of cls. (a) and (b) of Order 21, Rule 50 (1), Civil P. C., it admits of no doubt that they can be proceeded against only in the manner contemplated by Order 21, Rule 50 (2) of the Code. The sub-rule stands as follows: Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in Sub-rule (1), cls. (b) and (c), as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.

(3.) Two questions which arise for consideration in this appeal are: (1) whether the sub-rule contemplates a separate application for leave which is to be made prior to the presentation of the execution petition itself; and (2) whether the leave under the sub-rule could be granted by a Court which did not pass the decree but received it for execution on transfer by such Court. The first question admits of an easy answer. It is true that the sub-rule speaks of an application for leave "to the Court which passed the decree," but it is fairly well settled that it is not necessary that leave under Order 21, Rule 50 (2), Civil P. C., should be asked for in a separate petition before filing an application for execution. It is permissible to make one application combining both the prayers, and it is not even required to ask for leave separately as the application for execution against a particular person necessarily implies such a prayer: vide Jagat Chandra V/s. Gunny Hajee Ahmed ( 26) 13 A.I.R. 1926 Cal. and Jagannath Jugal Kishore V/s. Chimanlal Chowdhury ( 44) 48 C. W. N. 645. This point, therefore, must be decided against the appellants, and we cannot reject the application for execution simply because no separate application with an express prayer for leave under Order 21, Rule 50 (2), Civil P. C., was made.