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Punjab National Bank Ltd., Amritsar Vs. Raj Mal Pahar Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberExecution First Appeal No. 203 of 1953
Judge
Reported inAIR1959P& H362
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 50 and 50(2) - Order 30, Rule 1
AppellantPunjab National Bank Ltd., Amritsar
RespondentRaj Mal Pahar Chand and ors.
Appellant Advocate S.L. Puri, Adv.
Respondent Advocate K.S. Thapar, Adv.
DispositionAppeal allowed
Cases Referred and Motilal Chhajju Lal v. Giridhari Lal Rameshwarla
Excerpt:
.....application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the decree, however, was not fully satisfied......a conflict of views at least between two high courts . the question involved is of considerable importance and is of daily occurrence. in my opinion, therefore, it is desirable that it should be determined by a larger bench. the main question for consideration is, whether order 21, rule 50 civil procedure code has application in the case of a joint hindu family firm.counsel for the parties submit that the case being an old one it should be heard before vacation and should be decided as a whole by the bench hearing the reference. this request appears to be reasonable. the question referred to above will really determine the fate of the appeal. i, therefore, order that the case be heard before summer vacation. it be laid before the hon'ble chief justice for the constitution of the bench.
Judgment:
ORDER

Gurnam Singh, J.

1. This appeal arises out of execution proceedings. On 12-12-1947, the Punjab National Bank Limited, appellant before me, obtained a decree against firm Rajmal-Paharchand. The decree, however, was not fully satisfied. On 9-11-1952 present application was submitted by the decree-holder under Order XXI Rule 50, Civil Procedure Code. On notice of the application, the respondents appeared and raised various objections. One of the major objections raised by them was that they were members of a joint Hindu family firm and therefore the decree could not be executed against them in their individual capacity. Before the executing court, counsel representing the appellant-Bank made an admission that the judgment-debtor was a joint Hindu family firm.

2. It is an admitted fact that in an agreement dated 26-2-1940, the judgmenl-debtor-firm is described as a joint Hindu family firm. A supplementary agreement was executed on 5-6-1948. This is signed by all the three respondents and below their signatures word 'partners' is written. On the basis of the latter agreement, learned counsel, forthe appellant argues that they being partners, Order XXI Rule 50, Civil Procedure Code, is applicable. The other side places reliance on the admission of the counsel for the Bank wherein he had admitted that the respondents were a joint Hindu family firm. No doubt, counsel for appellant-Bank later submitted an affidavit showing therein that he had made that admission under a mistaken belief and in absence of instructions from the Bank.

At the same time learned counsel for the respondents had admitted only the signatures of the respondents on the later agreement. Learned counsel for the appellant-Bank from this argues that he should be allowed to withdraw this admission as it was made in the absence of instructions from the Bank and under a mistaken belief. On the other hand it has been pointed out by the respondents' counsel that the admission of a counsel made during proceedings is binding. On this he has cited several authorities.

3. The main question contested by the parties is the applicability of Order XXI Rule 50. Learned counsel for the appellant-Bank argues that it has application and for this contention he places reliance on Alekh Chandra v. Krishna Chandra Gajapati Narayan Deo, AIR 1941 Pat. 596, in which it was held

'Order 21 Rule 50 relates to execution and must be read with those rules of Order 30 which relate tosuits by or against firms or partnerships. Rule 10 of Order 30 applies to a joint Hindu family trading firm also. Therefore, the procedure under Order 21 Rule 50 applies to the execution of a decree against such a firm.'

In the course of judgment, Fazl Ali J. observed--'Now, it appears that in the Lahore High Court a provision has been inserted in Order 30 Rule 1 to the effect that the rule applies to a Joint Hindu family trading partnership also. Therefore, in cases decided in that High Court, no difficulty has ever arisen in the case of a joint Hindu family, because the courts have assumed that members of a joint Hindu family which carries on trading business form a partnership and the procedure laid down in Order 21, Rule 50. Clause (2) is applicable to a decree obtained against them.'

From the other side. Maturi Mall v. Bhagaban Das Puma Mall, AIR 1950 Orissa 189, and Motilal Chhajju Lal v. Giridhari Lal RameshwarlaI, AIR 1942 Cal. 613, are cited giving the contrary view. In Orissa authority it was held-

'Order 21, Rule 50 (2) has no application to the case of a joint family concern carrying on business in an assumed name and its application 'must be' limited to cases of contractual partnerships only.

Order 30 Rule 10, contemplates suits against a Single Individual carrying on ....business in a name or style other than his own.

If the decree-holder wants to make more than one person liable under the decree, Rule 10 would not be applicable.'

In this authority a detailed reference is made to the judgment of Fazl Ali J. reported in AIR 1941 Pat. 596. No authority of this High Court or that of Lahore High Court was cited before me There is thus a conflict of views at least between two High Courts . The question involved is of considerable importance and is of daily occurrence. In my opinion, therefore, it is desirable that it should be determined by a larger Bench. The main question for consideration is, whether Order 21, Rule 50 Civil Procedure Code has application in the case of a joint Hindu family firm.

Counsel for the parties submit that the case being an old one it should be heard before vacation and should be decided as a whole by the Bench hearing the reference. This request appears to be reasonable. The question referred to above will really determine the fate of the appeal. I, therefore, order that the case be heard before summer vacation. It be laid before the Hon'ble Chief Justice for the constitution of the Bench.


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