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Gorapalli Paradeshi Vs. Hindustan Chains Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 85 of 1980 and Civil Revn. No. 312 of 1980
Judge
Reported inAIR1981Ori149
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 50(2) - Order 30, Rule 10
AppellantGorapalli Paradeshi
RespondentHindustan Chains Pvt. Ltd.
Appellant AdvocateH.B. Swain and ;S.S. Swain, Advs.
Respondent AdvocateP.V. Ramdas, Adv.
DispositionRevision dismissed
Cases ReferredMandalsa Devi v. M. Ramanarain Private Ltd.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........in a name or style other than his own name may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules under this order shall apply.'rule l of order 30 provides:--'(1) any two or more persons claiming or being liable as partners and carrying on business in india may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case applyto the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the court may direct.'in view of these provisions in order 30 of the code of.....
Judgment:
ORDER

R.N. Misra, Ag. C.J.

1. Judgment-debtor is before this Court in appeal and revision against the same order rejecting his application under Section 47 of the Code of Civil Procedure. The appeal in my view does not lie and is accordingly dismissed and theCivil Revision is entertained for disposal on merit.

2. Opposite party obtained a decree in Civil Suit No. 865 of 1971 in the Court of the Munsif at Ghaziabad against M/s. Padmashree Metal Mart and after the said decree was transferred along with a certificate of non-satisfaction from the court which passed the decree to the District Judge, Koraput, execution was levied in the court of the Subordinate Judge at Jeypore in E. P. No. 307 of 1976 wherein in the column of judgment-debtor, 'M/s. Padmashree Metal Mart, Main Road, Prop. Sri Gorapalli Paradeshi, PO/ PS Jeypore, Koraput Dist.' was shown. An objection was filed by the Proprietor to the following effect;--

'(1) That the Execution Case as such is not maintainable. From the existing record it shows that the decree-holder Messrs. Hindustan Chains Private Ltd., Gaziabad, New Delhi has filed a money suit against Padmashri Metal Mart. The said firm was no properly represented through anybody as such and at present the decree-holder cannot substitute the name of G. Paradeshi in the Execution Case.

(2) The Execution Petition is also not supported by the copy of decree; as such the Execution case is not maintainable. There is no certificate as contemplated under Order 21', Rule 6 (b), C.P.C. The Execution Case also suffers from non-compliance of Order 21, Rule 6 (c), C.P.C. .....'

After hearing parties, the executing court dismissed this objection. That order is assailed in this revision application.

3. Padmashree Metal Mart is not a partnership firm, but Gorapalli Paradeshi has been carrying on business in the name and style of the firm. Rule 10 of Order 30 of the Code of Civil Procedure which provides as follows is, therefore, directly applicable.

'Any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules under this order shall apply.'

Rule l of Order 30 provides:--

'(1) Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case applyto the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.'

In view of these provisions in Order 30 of the Code of Civil Procedure, the decree obtained against the firm name adopted by Paradeshi for his business cannot be challenged as being a nullity. It has been pointed out by the Supreme Court in the case of Mandalsa Devi v. M. Ramanarain Private Ltd., AIR 1965 SC 1718 that a suit against a firm is really a suit against the partners. Reliance is placed by counsel for the petitioner on Sub-rule (2) of Rule 50 of Order 21 in support of the plea that in case the decree-holder wanted to proceed against the proprietor, steps should have been laken under Sub-rule (2) in the court which passed the decree to fix the liability against Paradeshi. Rule 10 of Order 30 provides that the rule relating to a firm and its partners would be applicable as far as practicable. Sub-rule (2) of Rule 50 of Order 21 as such may not be attracted to a case where the business belongs to a single person and the suit was filed against the business in the assumed name. I am inclined to think that the objection has been rightly rejected though appropriate grounds had not been specified for the rejection. Thus the conclusion is not open to challenge.

4. The revision fails and is dismissed with costs. Hearing fee is assessed at rupees fifty.


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