Pirthi Nath and Another vs Niranjan Lal Bhargava and Another

Ganga Nath, J.—This is an appeal by the objectors, Pirthi Nath and Shambhu Nath, against an order of the learned Civil Judge, Benares, appointing a receiver under Order 21, Rule 49(2). The opposite party 1, who would be called hereafter as decree-holder, had a decree against the opposite party 2, who will be described as judgment-debtor. The decree-holder applied for execution of the decree against his judgment-debtor. The application was made under Order 21, Rule 49 and 131. Objections were taken by the appellants that the judgment-debtor was not a partner of theirs and that no money was due to him from them. The appellants were ordered to file their account books. A commissioner was appointed by the learned Civil Judge to examine the account-books. The learned Counsel for the opposite party has not been able to show any order of the learned Civil Judge by which he might have determined as to whether the judgment-debtor was a partner of the appellants and whether any money was due to him from them. Unless these matters had been decided, no receiver could have been appointed under Order 21, Rule 49, and the appellants could not have been ordered to deposit any money. The order passed by the learned Civil Judge under Order 21, Rule 49 is wholly irregular. Under Rule 49(4) every application for an order under Sub-rule 2 shall be served on the judgment-debtor and on his partners or such of them as are within British India. No such notice was served on the appellants. A garnishee notice required under Order 21, Rule 131, C.P.C., only was served on the applicants. The order, therefore, passed by the learned Civil Judge against which this application has been made in revision cannot be supported. It is therefore ordered that the application be allowed with costs and the case be sent back to the lower Court for disposal in accordance with law.