1. Judgment-Debtors Civil Procedure Code (V of 1908), O. XXI, r. SO-Firm--Execution oj* decree-Ex parte uecree passed against defendant appearing and applying for permission to defend suit but failing to furnish security asked for by Court-Such judgment-debtor canno in execution proceedings be allowed to raise question determined or deemed to have been determined in suit itself-Case of such person, held, covered by sub-rule (1) of r. SO and sub-rule (2) not attracted.
2. In a suit against the partnership firm as well as two partners one of the partners appeared and applied for permission to defend the suit. Permission was granted subject to the furnishing of security. On his failure to furnish security ex parte decree was passed against him. Subsequently an ego parts decree was passed against the partnership and the other partner. The execution application filed against the partnership and the two partners was coot--sted by the partner, who had appeared in the suit but failed to furnish security, on the plea that he was entitled to lead evidence to show that he was not a partner. It was contended that a p.-rson could raise such a plea that two stages i.e., either in the suit itself or in the execution proceedings and since this question was not determined in the suit it was open to him to get it determined in the execution proceedings.
3. Held: According to sub-rule (2) of rule 50, Order XXI, Civil Procedure Code, 1908, a decree obtained against a firm can be executed against a person as a partner if he was not impleaded as defendant in the suit or not served in the suit and further not covered by sub-rule (1) and where such a person. Disputes the liability it may be determined under sub-rule (2) in the execution proceedings. [p. 329]A Where the judgment-debtor had appeared in order to contest. The suit and the permission was granted to him but he failed to avail of that opportunity as he did not furnish security the claim of the decree-holder is deemed to have been admitted. It follows that this amounted to the rejection of his plea. He is, therefore, debarred from re-agitating the plea. The sub-rule (2)--of rule 50, Order XXI, Civil Procedure Code, 1908 could be attracted only in case he had not been served with the suit.
4. Summon or had not otherwise appeared to contest the suit, and in that case, it would have been open to him to raise the plea. And get it determined in the execution proceedings. Decision in explicit terms is not necessary. It is enough if an adjudication on the matter is necessarily involved in the decision in the suit. It cannot be said that the decision on the question whether the judgment-debtor was a partner or not was not necessary. In order to render him liable for the claim in the suit it was necessarily to be decided that he was one of the partners in the firm which was sued. It is immaterial whether the decree is ex parte or passed after contest. The principle is equally applicable in both the cases. [p. 330]B The question having been once determined or deemed to have been determined in the suit itself cannot be allowed to be raised in the execution proceedings. The opportunity to substan--tiate the plea was lost to the judgment-debtor when he commit--ted the breach of the condition and the decree was passed against him. [p. 330]C Abdus Salam and others v. Hafiz Pirbux & Co. And otherx PLD 1962 Kar. 422 and Cooverji varjang and another v. Coover--bai Nagsey Champsey AIR 1940 Born. 330 ref.
5. Gojendra Narain Singh v. Johrimal Prahlad Rai AIR 1964 SC 581 held not applicable.
6. Mansoor Ahmad Khan for the Decree-Holder. .
7. S. A. Nusral for the Judgment-Debtor.
8. Date of hearing : 18th January 1972.
9. JUDC;MLN?
10. This is an execution application for the recovery of the decretal amount.
11. There was a partnership In the name of Bashir Sons having two partners Syed Azizur Rehman and Ghias Mahmood. The suit was filed on the basis of promissory note under Order XXXVII, C. P. C.
12. Against the partnership as well as the two partners. Sved Aaizur Rehman appeared and applied for permission to defend the suit. Permission was granted subject to the furnishing of security but lie failed to furnish the security and, therefore, a decree was passed against him on 15-9-1969.
13. Subsequently, an ex parte decree was passed against the partnership and Ghias Mahmood on 22nd April 1970. The present execution applica--tion has been filed against the partnership as well as the two partners. It was contested by Azizur Rehman.
14. The learned counsel for Azizur Rehman urged two points before me. The first point Is that there were two decrees passed in the suit and, therefore, both the decrees cannot be executed by filing one execution application, besides. In the column relating to the date of decree the date has been shown as 15th September 1969. I find no force In this contention. Although two separate decrees were passed but they were fn the same suit arising out of the same claim against all the judgment-debtors. They are severally and jointly liable to pay the decretal amount.
15. The second point which has been urged Is that the judgment debtor Is entitled to lead evidence to show that he was not a partner. To emphasise this, it was contended that a person could raise the plea at two stages I.e. Either in the suit itself or fn the execution proceedings, and since this question was not determined in the suit it was open to the judgment--debtor to get it agitated in the execution proceedings.
16. In order to appreciate the contention reference may be made to Order XXI, rule 50, C. P. C. This rule deals with the execu-- tion of 'a decree obtained against a firm and can be executed against the partnership or against the partners individually as laid down by sub-rules (1) and (2). According to sub-rule (1) the execution of the decree can be sought against (1) a person who appears as a partner under Order XXX, rules 6 and 7, (2) a person who has admitted In the pleading that he is a partner, (3) at person adjudged to be a partner by a Court passing the decree, and (4) a person who was Individually served as partner under Order XXX. Rule 3 and failed to appear. So far sub-rule (2) Is con-- cerned a decree obtained against a firm can be executed against~ 4 person as a partner if he was not Impleaded as defendant in the q suit or not served in the suit and further not covered by sub-! ~e ~e(t1) and where such a person disputes the liability it mayR determined under sub-rula- (2) In the execution proceedings.
17. The bare perusal of this rule shows that the case of Azizur Rehman ]s covered by wbrulo(1). He had appeared in order to contest the snit and the permission was granted to him but he failed to avail of that opportunity as he did not furnish security and, therefore, the claim of the decree-holder was deem ed to have been admitted. It further follows that this amounted t the rejection of his plea. He is, therefore, debarred from re-agitating the plea. The sub-rule (2) could be attracted only In case he had not been served with the suit summon or had not otherwise appeared to contest the suit, and in that case, I would have been open to him to raise the plea and get it deter--mined in these proceedings. There is no force in the contention that the plea was not investigated into. Decision in explicit terms is not necessary. It is enough if an adjudication on the matter Is necessarily involved in the decision in the suit. It cannot be said that the decision on the question whether the judgment-debtor was a partner or not was not necessary. In order to render him liable for the claim in the suit it was necessarily to be decided that he was one of the partners in the firm which was sued. It is Immaterial whether the decree is ex parte or passed after contest. The principle is equally applicable In both the cases.
18. The learned counsel placed reliance upon three authorities but none of these authorities are of any avail to the judgments debtor and they, on the contrary, support the view which I have taken. The first authotity is in the case of Abdus Salam and others v. Hafiz Pirbux & Co. And others (1). The relevant portion reads as under t "The liability of the partners of a firm can be determined both In the suit itself and in the execution proceedings. Under Order XXX, rule 8, C. P. C. The right of a partner to appear under protest and to deny that he is a partner is fully reoog-i nised. In such cases two courses are open to the Court. It can determine his liability fn the suit itself or leave the question to be tried and determined under Order XXI, rule 50, C. P. C. At the time of the execution of the decree against the firm".
19. There is nothing In the observation to support the contention. The courses which are referrred to are open to the Court and not to the party. In order to defeat the claim, the several grounds of attack available to a party must be taken in the suit. In case the party chooses not to raise a particular ground or subsequently abandons the ground previously taken, it cannot be permitted to raise it In the subsequent proceedings. It is, however, open to the Court to determine the liability of the partner in the suli itself or leave it to be tried and determined to the execution proceedings.
20. This is what has been laid down by the aforesaid observation. It does not lay down as contended by the learned counsel that a question though decided or deemed to have been decided in the suit Itself can again be re-agitated in the execution proceedings. The question having been once determined or~ deemed to have been determined in the suit itself cannot be' ellowed to be raised In the execution proceedings. The
(1) PLD 1962 Kar. 422 opportunity to substantiate the plea was lost to the judgment debtor when he committed the breach of the condition and the) decree was passed against him.
21. The second authority is in the case of Cooverf Varjang anal another v. Cooverbaf Nagsey Champsey (1). In that case the execution application was filed by the defendant for costs against the partner of the plaintiff's firm. So it was an appli--cation under Order XXI, rule 50, sub-rule (2), and, therefore, the case was not covered by sub-rule (i ). It was observed as under t "The present application is for leave under Order XXI, r. 50, sub-rule (2) which provides that where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in a firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined."
22. The third authority is in the case of Gajendra Narain Singh v. Johrimal Prahlad Rai (2) which lays down that relying upon sub-clauses (b) and (c) of sub-rule (1) of Order XXI, rule, 50, C. P. C. a plaintiff who has obtained a decree against a firm may execute it against any person who has been individually seeved with the summons as partner and has failed to appear and also against any person who has appeared in his own name under rule 6 or 7 of Order XXX, C. P. C. It was further laid down that an application by a plaintiff for leave to execute the decree against a person on the footing that he was the person other than the person referred to in clauses (b) and (c) of sub-rule (1) of Order XXI of rule 50 was found to be under incorrect appreciation of law and, therefore, the plaintiff's right under Order XXI, rule 50 (1) (b) was not lost and, therefore, he could abandon his application for leave and execute the decree. Thus even this authority operates against the contention raised by the learned counsel.
23. In the result, the objections are dismissed and it is ordered that the writ of attachment as prayed be issued.
24. A. B. Writ of attachment Issue d.
(1) A I 12 1940 Bom. 330(2) AIR 1964 SC 581