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Ravindra Finance Vs. Yaanai Tobacco Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 470 of 1978
Judge
Reported inAIR1979Mad25
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 37, 50, 50(1) and 50(2) - Order XXX, Rules 6 and 7
AppellantRavindra Finance
RespondentYaanai Tobacco Co. and ors.
Excerpt:
- - (c) against any person who has been individually served as a partner with a summons and has failed to appear. will clearly show that the partners should have appeared in their own name under r. , or should have been admitted on the pleadings that they are, or have been adjudged to be, partners, or summons in the suit should have been individually served on them and they must have failed to appear......against any property of the partnership; (b) against any person who has appeared in his name under rule 6 or rule 7 of o. xxx or who has been admitted on the pleadings that he is, or who has been adjudged to be, a partner; (c) against any person who has been individually served as a partner with a summons and has failed to appear.' in sub-rule (2) of r. 50, o. 21, c. p. c. it is stated-'(2) where the decree holder claims to be entitled to 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.....
Judgment:
ORDER

1. This is a petition to revise the order of the learned third Additional subordinate Judge, Tiruchirapalli, dated 26-7-1977 in E.P. No. 3 of 1977 in O. S. No. 394 of 1975 on his file. Admittedly, the petitioner who was the plaintiff and decree holder, obtained a decree only against the firm. Subsequently, he filed an execution petition purporting to be under Order 21, Rules 37 and 50 of the C. P. Code, for executing the decree against the respondents 2 and 3, who, according to the petitioner, were the partners of the firm. The court below dismissed the petition holding that when the respondents 2 and 3 had not been impleaded as parties to the suit or no summons had been served on them, the executing court cannot execute the decree against them. It is to revise this order the present civil revision petition has been filed.

2. I am of the opinion that the order of the learned Subordinate Judge is correct. Order 21, Rule 50 in sub-rule (1) thereof, states as follows-

'1. Where a decree has been passed against a firm, execution may be granted-

(a) against any property of the partnership;

(b) against any person who has appeared in his name under rule 6 or Rule 7 of O. XXX or who has been admitted on the pleadings that he is, or who has been adjudged to be, a partner;

(c) against any person who has been individually served as a partner with a summons and has failed to appear.'

In sub-rule (2) of R. 50, O. 21, C. P. C. It is stated-

'(2) Where the decree holder claims to be entitled to 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 my issue in a suit may be tried and determined.'

3. Thus, there is the clear difference between the partners being personally parties to the decree and they being not parties to the decree. In fact, clauses (b) and (c) of sub-rule (1) of Rule 50, Order 21, C. P. C. will clearly show that the partners should have appeared in their own name under R. 6 or Rule 7 of Order XXX C. P. C., or should have been admitted on the pleadings that they are, or have been adjudged to be, partners, or summons in the suit should have been individually served on them and they must have failed to appear. Only in such cases, the decrees can be executed against the partners. In all other cases, sub-r. (2) of Rule 50, Order 21, C.P. C. applies, which enables the court which passed the decree to grant leave. In this particular case, the respondents 2 and 3 have not appeared in their own name under Rule 6 or Rule 7 of Order XXX C. P. C. They have not been admitted on the pleadings that they were, or were adjudged to be, partners and no summons in the suit had been served on them individually. In those circumstances, neither Clause (b) nor clause (c) of sub-rule (1) of Rule 50 Order 21, C. P. C. will apply and therefore, the learned Judge was right in dismissing the application filed by the petitioner herein.

4. Consequently, the civil revision petition is dismissed.

5. Revision dismissed.


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