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BipIn Behari Pansari Vs. Asoka Marketing Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.A. No. 63 of 1970
Judge
Reported inAIR1972Ori94
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 50(2)
AppellantBipIn Behari Pansari
RespondentAsoka Marketing Ltd.
Advocates:R.K. Kar, Adv.
DispositionAppeal dismissed
Excerpt:
.....gita banik, 1996 (2) glt 246, are not good law]. - it can therefore be executed against the whole of the partnership property as provided in clause (a) of sub-rule (1), it can also be executed against any one or more of the partners personally, though before this is done, certain conditions have to be satisfied and certain procedure has to be followed as prescribed under this rule......in the award proceedings by his name. order 21, rule 50, civil p. c. provides for execution of decrees passed against firms. a decree against a firm in the name of the firm has the same effect as a decree against all the partners. it can therefore be executed against the whole of the partnership property as provided in clause (a) of sub-rule (1), it can also be executed against any one or more of the partners personally, though before this is done, certain conditions have to be satisfied and certain procedure has to be followed as prescribed under this rule. thus, it may be executed personally against any person coming under clauses (b) and (c) of sub-rule (l), inasmuch as, in such cases, it is to be safely assumed that the person proceeded against had knowledge of the suit and that.....
Judgment:

A.K. Misra, J.

1. This is an appeal by the judgment-debtor against an order of the Subordinate Judge, Bolangir rejecting his objection under Section 47. Civil P. C. in Ex. Case No. 23 of 1967. The facts, in brief, are as follows:--

A Decree was passed by the Calcutta High Court on its original side in Award Case No. 74 of 1958 against the firm Ramgopalji Kantilal. The decree was received on transfer for execution by the Subordinate Judge, Bolangir on which Ex Case No. 23 of 1967 was started on 29-3-1967. Execution was sought against M/s. Ramgopalji Kantilal through proprietors Bipin Behari Pansari, the present appellant and Kantilal Pansari. As the names of these two persons did not appear on the decree, on objection raised by the office, the decree-holders filed an application under Order 21. Rule 50, Civil P. C. for leave to add the present appellant and Kantilal Pansari who are alleged to be partners of the judgment-debtor firm and to proceed against them for realisation of the decretal amount. The court below allowed the application on 26-6-1967. The present appellant as a judgment-debtor appeared on 13-7-1967 and took time to file objection. Further time was taken by him on subsequent dates, but ultimately as no objection was filed, it passed an order directing the decree-holders to take further steps in the execution by 29-8-1967. On 29-8-1967, the decree-holders filed requisites for issue of warrant of attachment of the properties of the appellant. The judgment-debtors were granted further tune to file their objection till 23-9-1967. On this date, an application under Section 47, Civil P. C. was filed by the appellant He objected to the execution of the decree on the ground that he is not the proprietor of the firm Ramgopalji Kantilal against whom the decree was passed; that there was no such person as Kantilal Pansari; that the firm not being a registered one the decree not executable and that the award on the basis of which the decree had been passed was void and a nullity. These objections having been rejected, the present appeal has been preferred.

2. Learned Counsel for appellant at the commencement advanced the following contentions: (1) The judgment-debtor firm being a fictitious one, the decree is not executable; (2) the appellant not being a proprietor or partner of the firm, the decree cannot be executed against him; (3) Section 69 of the Partnership Act is a bar to the execution of the decree against a partner of a firm and (4) the award on which the decree was passed is a nullity as appellant had no notice before passing of the award.

3. None appeared for the respondent. Though initially the aforementioned four contentions were advanced, during the course of arguments, learned Counsel for appellant did not press contention Nos. 1. 3 and 4, and therefore, they stand rejected as not pressed and it is not necessary to deal with them on merits. The only point urged by learned Counsel for appellant in this appeal is that the appellant not being a proprietor or partner of the firm against which the decree was passed, the same is not executable against him.

4. On a consideration of the evidence, the court below has found that the appellant was a partner of the judgment-debtor firm and nothing substantial has been pointed out to interfere with this finding. Apart from this, on another ground also this contention of the appellant cannot be entertained. Undoubtedly, the decree was passed against the firm Ramgopalji Kantilal and the name of the appellant did not appear in the decree as he was not impleaded in the award proceedings by his name. Order 21, Rule 50, Civil P. C. provides for execution of decrees passed against firms. A decree against a firm in the name of the firm has the same effect as a decree against all the partners. It can therefore be executed against the whole of the partnership property as provided in Clause (a) of Sub-rule (1), It can also be executed against any one or more of the partners personally, though before this is done, certain conditions have to be satisfied and certain procedure has to be followed as prescribed under this rule. Thus, it may be executed personally against any person coming under Clauses (b) and (c) of Sub-rule (l), inasmuch as, in such cases, it is to be safely assumed that the person proceeded against had knowledge of the suit and that his liability as a partner has been established. Secondly, the decree can also with leave of the court be executed personally against any other person as being a partner of the firm as provided in sub-rule (2). Sub-rules (2) and (3) run as follows:--

'(2) Where the decree-holder claims to be entitled to a cause the decree to be executed against any person other than such a person as is referred to in Sub-rule (1). Clauses (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) Where the liability of any person has been tried and determined under Sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as it were a decree.'

By virtue of the Patna amendment adopted by this Court, the application for leave can be also made to the court to which the decree is sent for execution.

5. In the present case, it is not disputed that the decree-holders made an application for leave to add the present appellant as a partner of the firm under Sub-rule (2) of Order 21, Rule 50, Civil P. C. and such leave was granted. An enquiry under Sub-rule (2) is necessitated only where the liability is disputed. The liability not having been disputed, leave was granted and the decree-holders were permitted to proceed against the appellant as a partner, This order had the effect of a decree which as provided under Sub-rule (3) was appealable. The appellant not having preferred an appeal, the order has become final and conclusive and has the force of a decree. It is not open to the appellant to raise an objection under Section 47. Civil P. C. questioning the order of the court granting leave under sub-rule (2) of Order 21. Rule 50, Civil P. C. Therefore, the Court below has rightly rejected his application and it is not open to him now in a proceeding under Section 47. Civil P. C. to reagitate the question that he was not a partner of the firm and on that ground the decree is not executable against him.

6. Thus, considered from either point of view. I find no merit in this appeal which is accordingly dismissed with costs.


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