Gujarat High Court
Vijaychandra Prabhatilal Sharma And ... vs Manek Metal Syndicate on 24 October, 1989
Equivalent citations: AIR1990GUJ190, (1990)2GLR992, AIR 1990 GUJARAT 190
Author: G.T. Nanavati
Bench: G.T. Nanavati
ORDER
1. Manek Metal Syndicate, the respondent in this revision application Summary Suit No. 7034/80 in the City Civil Court at Bombay against Variety Body Builders, a partnership firm for recovering Rs.10610-36 with interest and costs. The suit was decreed ex Party for an amount of Rs. 12905-32. It appears that the decree holder recovered Rs.5750/- from two partners of the said, firm. As the remaining amount of Rs. 155-32 could not be recovered by the decree-holder, it filed Execution Application in the City Civil Court and got the same transferred to the District Court at Baroda. That Court transferred the said decree to the Court of Civil Judie (S.D.), Vadodara for execution. The learned Civil Judge issued Jangam warrant for the properties of the partnership firm but as no property belonging to the partnership was found at the place mentioned in the warrant the degree-holder applied to that Court to issue notices to Prabhatilal Sharma, Jugal kishore Prabhatilal Sharma and the two petitioners who are Vijaychandra Prabhatilal Sharma and Gnanendra Prabhatilal Sharma on the basis that they are the Partners of the said firm and they are liable to satisfy the decree. The learned Judge accordingly issued notices to all those four persons.
The present petitioners filed their objections, Ex. 24, and raised a dispute that they were not the partners nor are they partners of Variety Body Builders. Another contention raised before that Court was that they were not earlier served with summons -and no Decree is passed against them. Therefore, without following the procedure provided by Order XXI, Rule 50 of the Civil Procedure Code, the decree cannot be executed against them. The learned Civil Judge relying upon an extract from the register maintained by the Registrar of Firms came to the conclusion that defendants Nos. 3 and 4 Were the partners and are still continuing as partners of the said firm and, therefore, the decree can be executed against them. The learned Civil Judge was also of the view that if Vijaychandra and Gnanendra had raised -a contention that they were not the partners of the said firm or that they were not served as partners in the suit, in that case they should have challenged the decree passed against them and as they had not done so, they are liable to make payment under the decree. Taking this view, the learned Civil Judge ordered that the decree be executed against them and has also issued a warrant for that purpose. Aggrieved by that order passed below Ex. I in Regular Darkhast No. 231/ 8 1, Vijaychandra and Gnanendra have filed this revision application.
if we look at the decree, it becomes apparent that the decree has been passed against Variety Body Builders. There is nothing on record to show that the petitioners were served with summons in the suit which was filed against the firm. There is nothing on record to show that they were adjudged as partners of the said firm. There is also nothing to show that they were individually served as partners of the said firm. It is, therefore, urged by the learned Advocate appearing for the petitioners that the Executing Court should not have proceeded with execution of the decree against the petitioners in view of the provisions contained in Rule 50, Order XXI of the Civil Procedure Code. He submitted that according to sub-rule (2) of Rule 50 of Order XXI, it was necessary for the decree holder to apply to the Court which passed the decree to adjudicate whether the petitioners were or are She partners of the debtor-firm and unless the Court passing the decree decides the liability in the manner provided, the Executing Court could not have ordered execution of the decree against the petitioners.
In order to appreciate this contention it will be necessary to refer to Order XXI, Rule 50 which reads as under:
"50. Execution of decree against firm:-
(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 own name under Rule 6 or Rule 7 of Order XXX or who has 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:
Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of Section 30 of the Indian Partnership Act, 1932 (9 of 1932).
(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), Cls. (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 if disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.
(3) where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
(4) Save, as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.
(5) Nothing in this rule shall apply to a decree passed against a Hindu, undivided family by virtue of the provisions of Rule 10 of Order XXX."
2. A bare reading of the Rule makes it clear that a decree passed against a firm can be executed against any property of the partnership, or any person who has appeared in his own name under Rule 6 or Rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged as a partner, and against any person who has been individually served as a partner with a summons and has failed to appear. As pointed out above, in this case the decree has been passed against the partnership firm. There is nothing on record to show that the present petitioners were individually served as partners with summons in that suit or that they were adjudged as partners of the Said firm. For the first time after the decree came to be transferred to Vadodara Court, the decree-holder tried to execute the said decree against them on the ground that they are also partners of the said firm. Since the petitioners were not legally served as partners with summons in the suit filed in the Bombay Court, nor were they adjudged as partners of the said" firm, it became necessary for the degree-holder, on an objection being raised by the petitioners, to apply to the Court which had passed the decree for leave and get the liability of the petitioners to satisfy the decree determined in the manner provided by sub-rule (2), of R. 50. The Executing Court cannot decide such a question, nor fix the liability of a person who was not served with the -summons in the suit, nor was adjudged as a partner in the said firm Section 42 of the Code, after its amendment in 1976, confers wide powers on Executing Courts, but sub-section (4) of that section makes it clear that Executing Court does not Possess the power to grant leave to execute a decree passed against a firm against any person other thin a person referred to in clause (b) or clause (c) of sub-rule (1) of Rule 50 of Order XXI. As the decree is passed against persons other than the persons of the type referred to in clause (b) or clause, (c) of sub-rule (1) of Rule 50, the Executing Court did not have power to execute the decree passed against the firm against the petitioners. The Executing Court has, therefore, clearly acted contrary to the, provisions of Section 42 and Order XXI, Rule 50 of the Code and therefore, the order passed by it will have to be set aside.
3. In the result, this revision application is allowed. The order passed below Ex. 1 in Regular Darkhast No. 231/ 81 is quashed and set aside. Rule is made absolute with no order as to costs.
4. Revision allowed.