(Firm) Ramanand Ganpat Rai vs Rakhal Mandal and Others

Dhavle, J.—These are appeals by the decree-holders. A decree was obtained against a firm mentioning also the eight individuals that constituted the firm. Execution was taken and a certain property was brought to sale and purchased by the decree-holders. Upon this judgment-debtor 1 and seven sons of judgment-debtor 2, who had died since the passing of the decree, objected that the property did not belong to the firm; that the decree-holders had not obtained any order under Order 21, Rule 50, making the partners of the firm personally liable and that the sale was accordingly without jurisdiction. This objection was disallowed by the learned Subordinate Judge, but was allowed on appeal by the District Judge and that gives rise to one of the two appeals before us. The other appeal arises out of another objection raised by judgment-debtor 1 and one of the sons of judgment-debtor 2, since deceased, to a fresh execution on the same grounds as were mentioned in connexion with the ex post facto objection to the sale. This objection also has been fully allowed by the District Judge though it was only allowed in part by the Subordinate Judge.

The first point raised before us on behalf of the decree-holder appellants is that the decree under execution was not a decree against the firm at all and that it was, therefore, unnecessary to obtain any order under Order 21, Rule 50. In support of this contention the learned advocate has referred us to the plaint and decree and other papers, none of which is included in the paper book. If the matter had only rested there, however, the appellants'' contention would have been irresistible; but it appears that at a later stage judgment-debtors 1 and 2 applied under Order 9, Rule 13, (as the decree had been passed ex parte against them) to have it set aside. This application was dismissed, but only on the finding that though they had not been individually served with summonses the decree was quite valid in view of the service of summons on defendant 4 who had been stated by the plaintiffs to be the manager of the business of the firm. The learned Subordinate Judge who dealt with the application further held that it would be

open to defendants 1 and 2 to come under Order 21, Rule 50, Civil P.C., in the execution stage to object to the attachment of their personal properties,

and that they could have no relief in the shape of the reversal of the decree already passed. This order was taken up in appeal, and, we understand, upheld on the same footing. The learned advocate for the appellants has laid stress on the fact that the application for re-hearing thus failed. But that does not accurately sum up the position at all. The ex parte decree as against these judgment-debtors was undoubtedly upheld, but upheld on the footing not that it was a decree against the eight individuals composing the firm, but that it was a decree against the firm itself, and that these judgment-debtors, as among the individuals constituting the firm, were to be protected by Order 21, Rule 50, which in such cases requires a decree-holder to obtain the leave of the Court in the case of a decree passed against a firm to proceed against the individuals composing that firm. The learned advocate has laid stress on the observation of the learned Subordinate Judge that these two judgment-debtors were partners of the firm; but the decision substantially was that no individual liability had been brought home to them by the decree as it stood, and that this question was to be decided in the execution proceedings under Order 21. Rule 50. It has been suggested by the learned advocate that in so holding the Courts acted without jurisdiction. It is obvious, however, that the application for re-hearing was resisted by the decree-holders and that on the footing that though the ex parte decree, if it was to be construed as a decree against individuals as distinguished from the firm constituted by these individuals and others would have had to be set aside, what they had obtained was a decree not against the individuals but against the firm.

The learned advocate as a matter of fact had to concede that the contention that what the decree-holders had really obtained was a decree against the individuals and not merely a decree against the firm was never advanced below until the matter came to this Court. It seems to me that in view of what happened in the proceedings under Order 9, Rule 13, it is no longer open to the decree-holders to contend that what they have is a decree against the individuals composing the firm and not merely a decree against the firm itself. The learned advocate has also contended that if the decree is to be taken as a decree against the firm, the adjudication that is required under Order 21, Rule 50, is to be found in the order on the application of judgment-debtors 1 and 2 under Order 9, Rule 13. As I have already said, there are undoubtedly observations to that effect in the judgment of the learned Subordinate Judge, and also we understand in the appellate judgment, but their effect is, in my opinion, entirely nullified by the express reservation that it was open to these defendants to come under Order 21, Rule 50.

The next point urged by the learned advocate is that the application attacking the execution sale is barred by limitation as it was made more than thirty days after the date of the sale. A number of rulings on this point were considered by the lower Courts, but it does not seem necessary to discuss them in detail. Article 166, Lim. Act, does prescribe a period of thirty days from the date of the sale for applications under the CPC to set aside a sale in execution of a decree (including any such application by a judgment-debtor). The words included in brackets were added to the section by Act 1 of 1927, and the learned advocate for the decree-holders, has contended that the article now covers all applications made by judgment-debtors to set sales aside. This contention is perfectly correct in terms, but it does not seem to have much bearing upon the facts before us. It is true that the objection of the judgments-debtors prayed for setting the sale aside; but there is no dispute that a sale which is void as being entirely beyond the jurisdiction of the Court does not require to be set aside at all, as was indeed pointed out by Page, J. in Monmatha Nath Ghose v. Lachmi Debi, 1928 Cal 60.

For the reasons given by that learned Judge, though the facts before him were different, it seems clear that the limitation applicable to an objection of the kind that we have before us is that given not in Article 166 but in the residuary Article 181. There is no dispute that from this point of view the objection was not time barred. This is the view that was taken by the learned District Judge, and, in my opinion, it is the correct view. The learned advocate has also urged what he called constructive res judicata in that one of the judgment-debtors had made an objection to the execution at an earlier stage and is not shown on that occasion to have advanced the contentions which he urged in connection with the present applications; but the doctrine of constructive res judicata, as applied to execution proceedings, may easily be carried too far. The matter is not governed by any specific provisions in the Civil Procedure Code, and as the learned District Judge has pointed out the previous objection appears to have been filed not by judgment-debtor 1 at all but only by the other judgment-debtor. As to the liability of the sons of judgment-debtor 2, the learned advocate has frankly conceded that the prayer that was made on behalf of the decree-holders in the second execution case, namely the warrants, is entirely untenable against the sons of the deceased judgment-debtor. The result, in my opinion, is that the appeals both fail. I would dismiss them with costs.

Courtney-Terrell, C.J.

I agree.