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Sarju Prasad Vs. Ram Sarup - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All34; 60Ind.Cas.755
AppellantSarju Prasad
RespondentRam Sarup
Excerpt:
civil procedure code (act v of 1908.),order xxii, rule 3 - execution of decree--decree in favour of two partners--death of one partner, effect of. - - an objection was taken by the judgment debtor that the other partner of manni lai bad actually died on the 7th of july 1917, that is, prior to the date of the decree and, therefore, the decree could not be executed. there being no decree against the representatives of the deceased defendant, the decree remained clearly incapable of execution as it was impossible for the court to put the pre-emptor into possession of the whole of the property, but in the present case, however, even assuming that manni lal was dead before the decree was passed, his death wiped him out of the case......two persons, ram sarup and manni lal, were partners in a shop, a debt was due to the shop from the present applicant, sarju prasad, the two partners brought a suit against him and against another person. the applicant admitted the justice of the claim but the case had to continue as against the other defendant. it was finally withdrawn as against the latter and a decree .was passed in favour of ram sarup and manni lal on the 17th of july 1917. ram sarup has now put the decree into execution as a surviving partner of the firm. an objection was taken by the judgment debtor that the other partner of manni lai bad actually died on the 7th of july 1917, that is, prior to the date of the decree and, therefore, the decree could not be executed. the court below did not go into the question of.....
Judgment:

Tudball, J.

1. This is an application in revision. The facts are these: Two persons, Ram Sarup and Manni Lal, were partners in a shop, A debt was due to the shop from the present applicant, Sarju Prasad, The two partners brought a suit against him and against another person. The applicant admitted the justice of the claim but the case had to continue as against the other defendant. It was finally withdrawn as against the latter and a decree .was passed in favour of Ram Sarup and Manni Lal on the 17th of July 1917. Ram Sarup has now put the decree into execution as a surviving partner of the firm. An objection was taken by the judgment debtor that the other partner of Manni Lai bad actually died on the 7th of July 1917, that is, prior to the date of the decree and, therefore, the decree could not be executed. The Court below did not go into the question of fact as to whether Manni Lal did or did not die prior to the 17th of July 1917. It has held that, assuming that he did die on the 7th of July 1917, it is not open now to the defendant to object to the execution of the desree. The point taken before me is that a decree in favour of a dead person is null and void and cannot be executed. Order XXII, rules, shows that, where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, and where within the time limited by law no application is made under Sub-rule (1), the suit shall abate so far as the deceased plaintiff is son corned. Assuming that Manni Lil was dead, the fact remains that Ram from up, one of the plaintiffs, continued the case, and a decree WES passed in his favour as against the present applicant, and that decree is capable of execution. Attention has been called to the decision of a Bench of this Court in lmamuddin v. Sadarat Rai 5 Ind. Cas. 897 ; 7 A.L.J. 228 : 32 A. 301 That case does not apply to the fasts of the present case, That was a 6uit in which there was a decree for preemption of the whole properly which was in favour of certain plaintiffs against two defendants instead of three, all three being owners of the property. There being no decree against the representatives of the deceased defendant, the decree remained clearly incapable of execution as it was impossible for the Court to put the pre-emptor into possession of the whole of the property, but in the present case, however, even assuming that Manni Lal was dead before the decree was passed, his death wiped him out of the case. There remains the fact that Ram Sarup obtained a decree against the present applicant for the recovery of a certain sum of money and that decree is capable of execution. I, therefore, see no ground for inter ferrous in revision. The application is dismissed with coasts.


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