G ATHERTON AND CO Vs. SHABIB BAKSH

JUDGEMENT

(1.) This is an appeal by the decree-holder arising out of an execution proceeding. It appears that on 7 March 1922, the Bombay High Courts on the original side passed a decree for a sum of money against S. Johnson and Co. That decree was transferred for execution to the Jhansi Court and an application for execution of that decree was filed by the decree-holder on 25 September 1922. The decree was sought to be executed against Habib Bakhsh, who was described as son and heir of Rahim Bakhsh, alleged to be a former partner of S. Johnson and Co. An objection was raised on behalf of Habib Bakhsh that the decree was a nullity inasmuch as the suit had been instituted at a time when the sole partner Rahim Bakhsh was dead. The execution Court at Jhansi on 13 December 1923, held that Rahim Bakhsh was the sole proprietor of the firm known as S. Johnson & Co., and that he was dead on the date of the institution of the suit at Bombay. The application for execution was accordingly dismissed and on appeal to this Court the order of the Subordinate Judge was confirmed on 25 March 1925 and the findings of fact namely that Rahim Bakhsh was the sole proprietor of S. Johnson & Co. and that he was dead on the date when the suit was filed in the Bombay High Court were affirmed. It was further held that Habib Bakhsh was not bound to apply to the Bombay High Court for having the decree against a dead man formally set aside and that consequently an infructuous application made by him under Order 9, Rule 13, Civil P.C., was no bar to his plea that the decree was a nullity. This order became final and the execution proceedings in the Court of the Subordinate Judge at Jhansi were accordingly dropped.

(2.) It appears now that on 1 September 1926 the decree-holder made a fresh application in the Bombay High Court accompanied by an affidavit. Neither the application nor the affidavit is before us, but a copy of the order passed by the Bombay High Court, dated 12 November 1926, is on the record. Under that order leave was granted to the decree-holder to execute the decree against Habib Bakhsh as a partner of the firm of S. Johnson & Co. Curiously enough that order does not even refer to the findings arrived at by this High Court in a judgment inter parties. Although the order does not specifically mention it, one may presume that it was passed under Order 21, Rule 50, Civil P.C., and that leave was granted to the decree-holder under Sub-clause (2) of that rule. This order was followed by the transmission of the decree to the Jhansi Court afresh. I may note that although notice had been issued to Habib Bakhsh by the Bombay High Court a second time, he for some reason or other did not choose to appear and the order dated 12 November 1926 was passed ex parte.

(3.) When the matter was taken up by the Jhansi Court in the execution department a fresh set of objections were filed by Habib Bakhsh reiterating the previous two pleas that Rahim Bakhsh was the sole proprietor of S. Johnson & Co., and that he was dead at the time when the original suit in the Bombay High Court was instituted. There was a further plea that the orders passed by the Subordinate Judge and affirmed on appeal by the High Court in 1923 and 1925 respectively were a bar to a fresh execution of the same decree which had been held to be a bullity. The learned Subordinate Judge has accepted the objections of Habib Bakhsh and has dismissed the application; hence this appeal.