Firm Hazarilal Mathura Prasad vs Mahabir Sah

Fazl Ali, J.—The facts of this case are quite simple and may be shortly stated as follows:

The appellant firm obtained a decree at Lakhimpur in the District of Kheri in the United Provinces against the firm Lalchand Sah Rupchand Ram which carries on business at Masrakh in the District of Saran on 1st October 1929. In the decree four persons including one Lalchand Sah were mentioned as proprietors of the latter firm and the name of Mahabir Sah, the present respondent did not appear. Subsequently the decree was transferred to Chapra for execution and the appellant attempted to realise the decretal amount by the attachment and sale of certain properties belonging to the respondent, alleging that he was joint with Lalchand Sah, one of the judgment-debtors and the property sought to be attached was joint family property of both Lalchand and the respondent. Thereupon the respondent preferred an objection under O. 21 R. 58, before the executing. Court at Chapra alleging that he was separate from Lalchand and that the property sought to be attached was his exclusive property. On 10th September 1930, the Munsif allowed the respondent''s objection, holding that the respondent was not joint with Lalchand and that the property in dispute belonged to him exclusively. The appellant then made an application to the Munsif at Lakhimpur for leave to execute the decree against the respondent under O. 21, R. 50 (2) alleging that the latter was in charge of the firm against which be had obtained the decree. The Munsif issued notice to the respondent but as the latter did not appear, he granted leave to the appellant to execute his decree against him (the respondent). When the appellant subsequently proceeded to execute the decree, the respondent appeared once more before the Court of Chapra and objected to the execution on a number of grounds. His objection was again upheld by the Munsif who held that the decree could not be executed against him or his property and his decision was upheld on appeal by the District Judge. The appellant has in these circumstances preferred this second appeal under S. 47, Civil P.C.

A number of points were raised on behalf of the appellant before the Munsif, but in this appeal we are called upon to deal with only two of them on which the decision of the District judge is based.

The first question is whether the appellant firm having failed to institute a suit under O. 21, R. 63, to set aside the order in favour of the respondent under O. 21, R. 58, could execute the decree against the very property of the respondent which was the subject-matter of dispute in the proceeding under O. 21, R. 58. The District Judge is of opinion that he cannot; but in my opinion his view is not correct. O. 21, R. 63, provides that where a claim or an objection is preferred under O. 21, R. 58, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive. Now all that was decided in the previous: execution proceeding was that the property sought to be attached was the exclusive property of the respondent and there can be no doubt that this decision now, binds the parties and after that order [the property could no longer be attached in execution of the decree as it originally stood. It is however to be remembered that after that order the appellant went to the Court at Lakhimpur and obtained leave to execute the decree against the judgment-debtor on the ground that he was a partner in the firm against which the decree had been originally obtained. That being so the decision of the Munsif made under O. 21, R. 58, cannot stand in the way of the appellant executing the decree against the property of the respondent. The property sought to be attached may be the exclusive property of the respondent and may not have been liable to attachment under the decree as it originally stood, but the decree-holder has now obtained an order from the trial Court that he is entitled to proceed against the respondent and his property as he his a partner in the judgment-debtor firm. It is needless to say that the order under O. 21, R. 50, must be deemed to be a good one until it is set aside by a superior Court.

The next question is whether the executing. Court can go behind this order passed by the Munsif of Lakhimpur under O. 21, R. 50, and under-take to decide whether or not the respondent is one of the partners in the judgment-debtor firm against which the decree was obtained. Now, having regard to the language of O. 21, R. 50, it appears to me that the question whether the respondent was liable as a partner could have been tried and determined only by the Court to which an application was made under O. 21, R. 50. As I have already stated, before the order was passed by the Munsif at Lakhimpur, a notice had been issued to the respondent, but he did not appear and it has nowhere been found that the notice was cither not actually served on him or that It was deliberately suppressed. Under O. 21, R. 50, the Court may at once grant Leave to a decree-holder to proceed under that section where the liability of the person against whom the decree is sought to be executed is not disputed and so the order passed by the Munsif was a valid order under that section and the executing Court cannot go behind it. In this connection the advocate for the respondent strongly relies on the decision in G Atherton & Co, v. Habib Baksh 1929 All 390 = 115 I.C. 865. But the facts of the case appear to be distinguishable, because in that case, before the leave under O. 21, R. 50, was granted, it had already been decided that the sole proprietor of the firm against whom the suit was decreed had died before the institution of the suit. That question thus could not be re-opened in a subsequent proceeding under O. 21, R. 50. No doubt the Judges in that case held that an ex parte order granting leave under O. 21, R. 50, to apply for execution is not a decree, nor has it the force of a decree because Sub-Cl. (3), Order 21, R. 50, indicates that only such order granting leave as is passed after dispute and after the question has been tried and determined as if it were an issue in a suit is to have the force of a decree. As at present advised however I am not prepared to adopt this view without further scrutiny because prima facie it appears to me that if a party is given an opportunity to dispute his liability and does not come forward to dispute it, (sic) passed against him in such circum stances should in principle have the same force as an order passed against him after the question of his liability; has been tried and determined against him. However that may be, it appears to me that the executing Court cannot sit in judgment over the order of the Court which had passed the original decree and the question of the liability of the respondent should have been raised and determined in the Court which passed the decree.

I would therefore allow this appeal with costs and set aside the judgment of the Courts below and direct that the execution may proceed according to law.

Courtney-Terrell, C.J.

I agree.