Amara Lingeswara Rice Mill vs Katta Sudhakar and Brothers

Kodandaramayya, J.—The decree holder is the Petitioner herein. He obtained a decree against two Defendants, the Respondents herein. The controversy relates to the execution of the decree against the 2nd Respondent firm represented by Aki Anjaneyulu. The decree-holder applied for arrest of the said Aki Anjaneyulu and the said individual objected to the execution of the decree on the ground that he is neither a party nor summons was served on him individually. This objection was upheld by the court below. Hence this revision.

Sri V. Parabrahma Sastry, learned Counsel for the Petitioner, argued that once a decree is passed as provided in Order 30 Rules 6 and 8 CPC the executing court cannot go beyond the decree and that execution should follow. This is countered by Sri C.V.N. Sastry, learned Counsel for the Respondents, that the executing court was given power to make an inquiry into the decree whether it was obtained against one in individual capacity or a firm having regard to the principle laid down in the three clauses under Order 21 Rule 50 and the proviso of the Code of Civil Procedure. It is quite clear that Clause (b) of Rule 50(1) does not apply to the present case, as it is not a case of appearance by a party in the court or admitting his status in the pleadings. As regards the applicability of Clause (c) both the learned Counsel are at variance. The learned Counsel for the Respondents urged that this is not a case where a person was served individually but a case where he is contending that he is not a partner of the firm at all. On the other hand the learned Counsel for the Petitioner states that the endorsement on the summons that the Judgment-debtor had refused to accept the summons on the ground that he is not a partner at the relevant time is sufficient, if the court accepts such refusal as sufficient service, and the decree obtained by him is final and Clause (c) of Order 21, Rule 50(1) is attracted. Therefore, it is necessary to find out whether the court, after the summons was returned with the above said endorsement, treated the same as sufficient service and proceeded with the trial. If the proceedings disclose that the court proceeded on the basis that the return of summons in the above terms would constitute sufficient service, the decree must be treated as one passed against that person individually, as in this case the second Respondent was served in his name as Managing Partner or sought to be served in his name as Managing Partner. But the relevant material is not available as we have to look into case dairy in this regard. I, therefore, remand the matter to the trial Court to find out whether the summons returned on the date when it was sought to be served was treated by the Court as sufficient service before proceeding with the tri'' if so I am clear that Clause (c) of Rule 50(1) is attracted.

Mr. C.V.N. Sastry, learned Counsel for the Respondents contended that even if the court proceeded with the suit on the basis that the summons so returned would constitute sufficient service, it is still open to the judgment-debtor to contend that such order is bad and hence establish that the summons was not served individually as required under Order 21, Rule 50. But I am not persuaded to accept this contention. The Court has got the power to treat a particular service as sufficient service. Even if it committed a mistake, the executing court cannot correct it. Such power cannot be exercised by the executing court in an enquiry under Order 21, Rule 50(1)(c). It is necessary to find out the order passed by the court treating the refusal as sufficient service. Even if the court erroneously treated particular service as sufficient, such defect or irregularity can be corrected only by the court which passed the decree. This is the relative scope, according to me, of Order 30, Rules 6, 7 and 8 and Order 21, Rule 50(1)(c), of the Code of Civil Procedure.

In the result, the Civil Revision Petition is allowed and the matter is remanded to the trial court to make the necessary enquiry and dispose of the applications according to law in the light of the directions given above, no costs.