The petitioner, brought a suit for the recovery of an amount of Rs, 32,54,229/- against the respondents claiming that, he and the respondents were conducting the business in partnership and were jointly entitled to certain amount from the Municipal Committee, Okara, but Respondents No, 1 to 4, without impleading the petitioner, filed a suit for recovery against the Municipal Committee and procured a decree, to the tune of Rs, 65,08,458.09, in which, the petitioner has the half sare, hence the suit. Alongwith the suit, an application under Order XXI Rule 53 of CPC, was moved by the petitioner, seeking attachment of the decree, which application has been dismissed through the impugned order for the reasons that, the petitioner had earlier filed some suit for rendition of accounts, which was subsequently dismissed for want of evidence; appeal of the petitioner has also been dismissed; the petitioner was aware of the suit, which has been decreed and never applied to become a party; moreover, subsequently the petitioner again filed a suit for declaration on the basis of partnership dated 11.10.1990 to the effect that, he is entitled to 1/2 share of the decretal amount, but was subsequently withdrawn.
2. Learned counsel for the petitioner has reiterated that, the petitioner was entitled to 1/2 share and the decree by the other respondents against the Municipal Committee, has been procedure without impleading him as party, therefore, he should be given the share in the fruits of such decree and thus, the decree was liable to be attached in terms of Order XXI Rule 53 CPC.
3. I have heard the learned counsel for the petitioner and by endorsing the reasons of the Court below, given in the impugned order, find no merits in his contentions. Moreover, the application was/is liable to be dismissed for another basic legal ground that, the same under, Order XXI Rule 53 CPC, was not competent, in a separate and independent suit for recovery of money, filed by the petitioner, rather such application, if at all could be maintained, should have been filed before the Executing Court, where the decree earlier passed in favour of the respondents against the Municipal Committee, Okara. was in the process of execution. While explaining the above, it may be held that, the provisions of Order XXI Rule 53 CPC, are the powers only exercisable by the Executing Court of the decree mentioned above and not by the Court, while exercising its original civil jurisdiction in an independent suit. Because in contrast and contradiction to the above, the Court in the exercise of its original civil jurisdiction could only pass an order of attachment before judgment, of a property belonging to the defendant, if the provisions of Order 38 Rule 5 CPC, were squarely applicable, entitling the suiter of a case, to seek such attachment, and the conditions of the aforesaid, rule are duly met. But this is not the position in the present case. Resultantly, I do not find any merit in this petition, which is hereby dismissed.