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Lingaraj Paikaray and ors. Vs. Raghunath Chhotray and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 301 of 1979
Judge
Reported inAIR1983Ori146
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantLingaraj Paikaray and ors.
RespondentRaghunath Chhotray and ors.
Appellant AdvocateP.K. Misra, Adv.
Respondent AdvocateS.K. Dey, ;B.P. Tripathi and ;B. Sahu, Advs.
DispositionRevision allowed
Cases ReferredRamasami Iyengar v. Sriranga Chariar.
Excerpt:
.....firm or its assets except to receive the amount standing in his name in the books of the firm and the value of his share in the good will assessed at rs. 5,000/- and also for a permanent injunction restraining the said defendant from asserting any right against the plaintiffs or the partnership firm other than to receive the amount standing in his name in the books of the firm and the value of his share in the good will assessed at rupees 5,000/-.the suit was decreed on 22-4-77 in the following terms: in his name and the value of his share in the good will assessed at rupees five thousand as awarded by the plaintiff lingaraj paikara. 4. it is well settled that a declaratory decree is incapable of execution and a separate suit has to be filed on the basis of the declaration made..........the books of the firm and the value of his share in the good will assessed at rupees 5,000/-. the suit was decreed on 22-4-77 in the following terms:--'......it is declared that a sum of rupees one lakh four thousand five hundred forty two and seventy eight paise was standing to the credit of the defendant in the books of the firm tapang light foundry & co. on the date of his expulsion. and it being recorded that the defendant has submitted to a decree as hereinafter stated. it is further declared that the defendant has ceased to be a partner of the partnership business of tapang light foundry and co. with effect from the fourth day of april one thousand nine hundred and sixty four and that the plaintiffs and satish chandra bhattacharjee since deceased were the only partners of the said.....
Judgment:
ORDER

P.K. Mohanti, J.

1. The short question that requires determination in this Civil Revision is whether the decree under execution is declaratory or executory.

2. The petitioners and the pro forma opposite parties Nos. 2 to 4 as plaintiffs brought original suit No. 605 of 1964 in the High Court of Calcutta for declaration that the defendant Raghunath Chhotray (O. P. No. 1 here) had ceased to be a partner of the partnership business of Tapang Light Foundry and Co. with effect from 4-4-1964; that the plaintiffs along with one Satish Ch. Bhattacharjee were the only partners of the said firm with effect from that date; that the resolution dated 4-4-1964 was validly passed; that the defendant Raghunath Chhotray had no other right against the plaintiffs or the partnership firm or its assets except to receive the amount standing in his name in the books of the firm and the value of his share in the good will assessed at Rs. 5,000/- and also for a permanent injunction restraining the said defendant from asserting any right against the plaintiffs or the partnership firm other than to receive the amount standing in his name in the books of the firm and the value of his share in the good will assessed at Rupees 5,000/-. The suit was decreed on 22-4-77 in the following terms:--

'......It is declared that a sum of Rupees one lakh four thousand five hundred forty two and seventy eight paise was standing to the credit of the defendant in the books of the firm Tapang Light Foundry & Co. on the date of his expulsion. And it being recorded that the defendant has submitted to a decree as hereinafter stated. It is further declared that the defendant has ceased to be a partner of the partnership business of Tapang Light Foundry and Co. with effect from the fourth day of April one thousand nine hundred and sixty four and that the plaintiffs and Satish Chandra Bhattacharjee since deceased were the only partners of the said firm with effect from the fourth day of April one thousand nine hundred and sixty four. And it is further declared that the resolution dated the fourth day of April one thousand nine hundred and sixty four was validly passed. And it is further declared that the defendant has no other right against the plaintiffs or the partnership firm or its assets except to receive the amount standing in the books of the said firm of Tapang Light Foundry & Co. in his name and the value of his share in the good will assessed at Rupees five thousand as awarded by the plaintiff Lingaraj Paikara. In the event of the plaintiffs having incurred any expenses for and on account of the defendant by virtue of any statutory provision or otherwise it is ordered and decreed that the plaintiffs shall be at liberty to recover the same from the defendant in an appropriate proceedings and shall not be debarred from claiming the same only because of the decree passed in this suit. And it is further ordered and decreed that each party shall pay and bear his or their own costs of and incidental to this suit (to be taxed by the Taxing Officer of this Court). And it is further ordered that an interim order passed in this suit and dated the twentieth day of December one thousand nine hundred and sixty seven shall continue till the seventeenth day of June one thousand nine hundred and seventy seven.'

3. On the application of the defendant-opposite party No. 1, the aforesaid decree was transferred to the court of the Subordinate Judge, Bhubaneswar for execution. The defendant filed Execution Case No. 9 of 1978 for realisation of the sum of Rs. 1,04,542.78 paise plus Rupees 5,000/- i.e., in all Rs. 1,09,542.78 paise by attachment and sale of the immovable properties of the plaintiffs. The plaintiff filed an objection under Section 47, C. P. C. challenging the executability of the decree. The objection was registered, as Misc. Case No. 9/79. The learned Subordinate Judge dismissed the same on 16-4-1979 holding that 'though the decree is declaratory, it will be executable as it is passed in a suit for dissolution of partnership in which each partner has the same right'. Aggrieved by the order of dismissal, the plaintiff have come up in revision.

4. It is well settled that a declaratory decree is incapable of execution and a separate suit has to be filed on the basis of the declaration made in the decree.

5. A declaratory decree is one which merely declares the rights of the parties but does not direct any act to be performed. It embodies no definite order which can be enforced by execution. Though it declares certain rights out of which certain reliefs are to emerge, the decree itself does not provide for those reliefs vide (1966) 32 Cut LT 1049, Dambaru Pradhan v. Kausalya.

6. In the present case, the decree merely declares the rights of the parties and does not require either party to do or not to do anything. It does not contain any direction to the plaintiffs to pay any amount to the defendant. There is also no direction that the defendant would recover the amount from the plaintiffs by execution. The learned counsel appearing for the defendant-opposite party placed reliance on the following words in the decree.:--

'......the defendant has no other right against the plaintiffs or the partnership firm or its assets except to receive the amount standing in the books of the firm in his name and the value of his share in the goodwill assessed at Rs. 5,000/-and contended that there is an enforceable decree in favour of the defendant. I am unable to accede to this contention, As already stated, the decree merely declares that the defendant has no other right except to receive the amount of Rs. 1,04,542.78 paise standing in his name In the books of the firm and the sum of Rs. 5,000/- as the value of his share in the good will of the business. An executing Court can only execute a definite order. In the instant case, the decree does not contain any definite order which can be enforced by execution. So the defendant could not recover the amount by execution. The right to receive the amount declared by the decree could only be enforced in a regular suit brought for the purpose.

7. In support of his finding the learned Subordinate Judge relied on two decisions reported in AIR 1951 Pat 459 Ml Bilas Devi v. Bansidhar Sahu and (1910) 6 Ind Cas 681 (Mad), Ramasami Iyengar v. Sriranga Chariar.

The first case cited above arose out of a suit for partition of joint family property against a number of defendants including defendant No. 5 Bansidhar Sahu. The suit was compromised between the appellant Mt. Bilas Devi and the defendant No. 5 on the following terms (at p. 459):--

'(1) That Mt. Bilas Devi shall be declared entitled to the maintenance at the rate of Rs. 125/- (one hundred and twenty five) a month which shall be payable to her on the 7th of each English calendar month.

(2) That the lady shall also get Rupees 5,000/- and the same shall be paid to her by defendant 5 at the rate of Rupees 2,000/- a year and the balance of Rupees 1,000/- shall be paid in the third year after the first two instalments have been paid. The first two thousand rupees is to be paid on or before 15-1-1948, the second instalment on or before 15-1-1949, and the balance on or before 30-6-1949. In the event of non-payment of any of the instalments, the lady shall be entitled to realise the whole amount then due by execution.

(3) That the lady shall also be paid Rs. 1400/- On account of ornaments. Rupees 700/- must be paid, by the defendant 5 on or before 15-7-1947, and the balance of Rs. 7000/- on or before the 15-1-1948. In the event of non-payment of the first instalment on the date fixed, the lady shall be entitled to realise the whole of Rs. 1400/- by execution.

(4) That it is also agreed that the lady shall be entitled to live in the house situated in Mahalla Abarpool in the town of Arrah. Neither the lady nor any of the parties to the suit shall be entitled to sell the house during the lifetime of the lady.

(5) That, in the event of these instalments not being paid to the lady, interest, shall run at six per cent from the date of default.

(6) That the lady is entitled to arrears of maintenance at this rate from 1-4-1945......

As the defendant No. 5 did not pay the amount covered by the terms of the compromise, the decree-holder started execution proceedings. The judgment-debtor filed objection under Section 47, C. P. C. contending, inter alia, that the decree-holder was not entitled to realise the amounts without having recourse to a separate suit and that the decree passed in the partition suit was quite illegal, invalid and inexecutable. The executing Court overruled the judgment-debtor's objection in respect of the realisation of the two sums of Rs. 5000/-and Rs. 1400/- with interest but upheld the contention in respect of the arrears of maintenance. On appeal before the High Court of Patna, it was urged that though two sums of Rs. 5000/- and Rupees 1400/- were made payable and, realisable by execution no such explicit direction was made in the other portions of the decree relating to arrears of maintenance or future maintenance. It was accordingly urged that in respect of the arrears of maintenance and future maintenance the rights of the plaintiffs were only declared and she was left to seek her remedies by a regular suit. Construing the entire terms of the compromise, their Lordships held that the parties contemplated that recourse to a fresh suit each time a default was made in the payment of maintenance or in the payment of arrears of maintenance was not necessary. Rather the parties intended that they were putting an end to the litigation between them. Accordingly the appeal was allowed and, the order of the executing Court in so far as it was against the appellant was set aside. Thus, it would appear that the monthly maintenance was fixed at Rs. 125/- and there was a definite order that the amount shall be payable to her on the 7th of each English Calendar month commencing from 7-4-1945. The terms of the compromise clearly indicated that the defendant No. 5 would pay the maintenance at the rate and on the date fixed by the decree.

In (1910) 6 Ind Cas 681 (Mad) referred to above the plaintiffs prayed for a certain declaration and also prayed that the keys of the temple should be handed over to them. The decree gave a declaration and, stated that the plaintiffs 'are entitled to the keys of the temple'. On these facts their Lordships of the Madras High Court held that the plaintiffs-decree-holders were entitled to recover possession of the keys in execution of the decree,

8. In the instant case, there was no order of the Court for payment of the amount which could be enforced by execution. There is nothing in the decree which empowers the defendant to recover the amounts through the Court by execution. The decree in its nature is declaratory and, not executory. I am, therefore, of the opinion that the defendant has misconceived his remedy and his application for execution was not maintainable.

9. In view of my above findings, it is not necessary to consider the other points urged on behalf of the petitioners.

10. In the result, the Civil Revision is allowed and the order of the executing Court is set aside. Execution Case No. 9 of 1979 be dismissed as not maintainable. Parties to bear their own costs incurred in this Court.


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