Skip to content


Kritanta Kumar Guha, Receiver of Firm Styled Krishna Chandra Sonatan Mahim Chandra and Rajani Kanta Paul and ors. Vs. PullIn Krishna (Behary in Vok) Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal316
AppellantKritanta Kumar Guha, Receiver of Firm Styled Krishna Chandra Sonatan Mahim Chandra and Rajani Kanta
RespondentPullIn Krishna (Behary in Vok) Pal and ors.
Cases ReferredGeneral of Bombay v. Hajl Sultanalli Sushtary
Excerpt:
- .....for rateable distribution and rejected it on the following grounds : (1) that the execution of the decree obtained by the appellants was bad in law; (2) that the property which was sold was personal property of pulin only and (3) that there was no satisfactory evidence to show that the property sold belonged to the firm against which the appellants obtained their decree on the original side of this court.2. the present) rule is directed against this order, on the same day the learned subordinate judge adjourned the execution case no. 258 of 1933 to 6th july for orders. ultimately it came up for hearing on 13th july 1935 and was dismissed, as no steps were taken by the decree- holder to proceed with the case. the miscellaneous appeal is directed against this order3. the first point urged.....
Judgment:

Nasim Ali, J.

1. The facts which give rise to this appeal and the rule are as follows : The appellants in the appeal from original order who are the petitioners in the civil revision obtained a decree for Rs. 1,30,000 against a firm known as Ram Krishna Bejoy Krishna Pal on the Original Side of this Court on 27th November 1929. On 6th February 1935 this decree was transferred for execution to the Court of the Subordinate Judge at Nadia. This execution case was registered as Execution Case No. 23 of 1935. Radha Gobinda Pal, the opposite party in the civil revision case obtained a decree against Pullin Behari Pal and Anil Krishna Pal and three others persons for Rs. 2371-11.6, on 7th June 1933 in the Court of the Subordinate Judge of Nadia. He put this decree into execution on 5th December 1933, This execution was registered as Money Execution Case No. 258 of 1933. On 6th April 1935, the appellants applied for rateable distribution of the money which would be brought to Court in Execution Case No. 258 of 1933 as sale proceeds of certain properties attached in the said execution case. The properties were actually sold on 11th April 1935. On 29th June 1935, the learned Subordinate Judge heard the application of the appellants for rateable distribution and rejected it on the following grounds : (1) that the execution of the decree obtained by the appellants was bad in law; (2) that the property which was sold was personal property of Pulin only and (3) that there was no satisfactory evidence to show that the property sold belonged to the firm against which the appellants obtained their decree on the Original Side of this Court.

2. The present) rule is directed against this order, On the same day the learned Subordinate Judge adjourned the Execution Case No. 258 of 1933 to 6th July for orders. Ultimately it came up for hearing on 13th July 1935 and was dismissed, as no steps were taken by the decree- holder to proceed with the case. The miscellaneous appeal is directed against this order

3. The first point urged by the learned advocate for the appellants is that the learned Subordinate Judge was in error in holding that the appellants' application for execution of the decree was bad in law, This contention is well founded. This decree was no doubt obtained against the firm known as Ram Krishna Bejoy Krishna Pal. Under Order 30, Civil P. C, the suit is to be brought against the firm. When a suit is brought against a firm and judgment obtained against it, the action is really against the persons who constituted the firm and the judgment is really a judgment against the individuals : See In Re: Handford & Co.; Ex parte Handford (1899) 1Q B 566 at p. 570.

It is Battled law that the effect of the provisions with regard to suing partners in their firm name is merely to give a compendious mode of describing in the writ the partners who compose the firm and that the plaintiff who sues partners in the name of their firm in truth sues them individually, just as much as if he had set out all their names : see Ram Prosad v. Anundjl & Co. (1922) 9 AIR Cal 408 at. p. 527; Brojo Lal Saha Banikya v. Budh Nath Pyazilal & Co. : AIR1928Cal148 .

4. It appears that in the suit brought by the appellants against firm Ram Krishna Bejoy Krishna Pal writ of summons was served upon Pulin Behari Pal and Anil Krishna Pal as partners of the said firm (Ex. 2). It further appears that Pulin Behari entered appearance in that suit as a partner of the said firm (see the certificate of part satisfaction which was issued by this Court on its Original Side to the Court at Nadia). The decree obtained by the appellants must therefore be taken to be a decree against Pulin Behari Pal as well as Anil Krishna Pal individually. The mere fact that three other persons were stated to be the remaining partners of the firm in the petition for execution cannot make the execution invalid. These other persons do not, no doubt, come under Order 21, Rule 50 (1), Clauses (b) and (c) of the Code. The appellants cannot execute the decree against them unless they have obtained leave from the Court which has passed the decree. This leave has not been obtained and consequently without such leave the appellants are not entitled to proceed against them. But the effect of the inclusion of the names of these persons in the petition for execution cannot invalidate the execution itself. The decree-holders are entitled to proceed against the other two judgment debtors, namely Pulin Behari Pal and Anil Krishna Pal and the execution petition is valid so far as they are concerned.

5. By Section 73, Civil P. C, where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons. It has been already stated that the appellants applied for execution of their decree and made an application for rateable distribution before the receipt of the assets. Mr. Sen appearing on behalf of the opposite party however contended that the decree obtained by the appellants is not against the same judgment-debtors, inasmuch as the decree obtained by the appellants was against the firm Ram Krishna Bejoy Krishna Pal while the decree obtained by the opposite party was against Punlin Behari Pal and Anil Krishna Pal and three other persons individually. I am unable to accept this contention of Mr. Ben. It has been pointed out that the decree against the firm is in effect a decree against Pulin Behari Pal and Anil Krishna Pal individually. Consequently Pulin and Anil are the common judgment-debtors in the two decrees. This view is supported by a decision of the Bombay High Court in Administrator-General of Bombay v. Hajl Sultanalli Sushtary & Co. (1927) 14 AIR Bom 255 at p. 256. The appellants are therefore entitled to get rateable distribution of the sale proceeds in Execution Case No. 258 of 1933.

6. It has been already pointed out that the appellants' application for execution is maintainable against Pulin Behari Pal and Anil Krishna Pal. The learned Sub-ordinate Judge was therefore wrong in holding that the execution was not maintainable in law. The appellants did not proceed with the execution case in view of the finding of the learned Judge that the execution petition was not at all maintainable. The order dismissing the application for execution cannot therefore be sustained.

7. The result therefore is that the rule is made absolute. The order of the learned Subordinate Judge refusing the petitioner's application for rateable distribution is get aside. The learned Judge is directed to distribute the sale proceeds rateably. The appeal is also allowed in part. The order dismissing the appellants' application foe execution against Pulin and Anil is set aside. The learned Judge is directed to proceed with the application for execution against them. The order dismissing the application for execution against the other judgment debtors is affirmed. If the opposite party Radha Gobinda Pal has already withdrawn the sale proceeds from the executing Court, he must deposit the said amount in Court within three months from this date in order to enable the executing Court to distribute this amount amongst the petitioners and the opposite party in the civil revision case. There will be only one set of costs in the appeal as well as in the rule-hearing fee being assessed at three gold mohurs.

Bartley, J.

8. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //