Point of law: No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firms

ORDER:

This Civil Revision Petition is directed against order in E.A.No.121 of 2018 in E.P.No.82 of 2006 in O.S.No.693 of 2004 on the file of the Court of learned II Additional Senior Civil Judge, Vijayawada.

2. The petitioner is first J.Dr. The first respondent is the D.Hr. and the respondents 2 and 3, who are no more, were J.Drs.2 and 3.

3. The first respondent instituted the suit against the petitioner and respondents 2 and 3 as a partnership firm, represented by it’s partner Sri Dammalapati Srinivas, on the foot of two promissory notes, in all for Rs.2,66,672/-. The suit was decreed on 03.03.2006 basing on the material produced by the first respondent and also for the reason that the petitioner did not choose to participate during the trial. Thus, it remained an ex parte decree.

4. In execution of this decree, the first respondent instituted E.P.No.82 of 2006 for realisation of decretal amount. The mode of execution sought was by attachment and sale of immovable property. The petitioner also contested this execution petition and his objections were overruled. His son Sri Bhanu Mahesh filed a claim petition in E.A.No.262 of 2011 under Order XXI Rule 58 CPC read with Section 151 CPC. It was dismissed on contest by the executing Court and thereafter the execution petition was posted for sale of the property to 06.08.2018.

5. The execution petition was dismissed for default since sale papers were not filed on 23.10.2017. Therefore, the first respondent filed E.A.No.46 of 2018 for restoration of the same and it was allowed by an order of the executing Court dated 06.06.2018, rejecting the objections raised on behalf of the petitioner. It appears that objection in terms of Section 69(2) of Indian Partnership Act as to maintainability of the suit and thus questioning the decree was raised as one of the objections while opposing E.A.No.46 of 2018.

6. Against the order in E.A.No.46 of 2018, the petitioner presented C.R.P.No.3754 of 2018 on the file of the then High Court of Andhra Pradesh, at Hyderabad. In respect of nature of such objection, the observations in the above C.R.P. in the order dated 06.07.2018 are as under:

“The learned counsel for the revision petitioner contended that the decree itself was a nullity on account of unregistered partnership firm filing the suit. But this is a question that the petitioner should have either raised before the trial Court or should at least raise in the execution proceedings. This cannot be raised in an application for restoration of the E.P. Therefore, leaving it open to the petitioner to raise all objections available to him under law within a week from the date of receipt of a copy of the order, this Civil Revision Petition is dismissed. No costs.”

7. On the strength of these observations, the petitioner filed E.A.No.121 of 2018 purportedly under Section 47 CPC read with Section 151 CPC to declare that the decree dated 03.03.2006 passed in the suit O.S.No.693 of 2004 is null and void.

8. The main contention of the petitioner in the above petition was basing on the status of the first respondent as an unregistered partnership firm, which cannot enforce any liability against a third party in terms of Section 69(2) of Indian Partnership Act. The main ground thus urged was that the first respondent was not registered under Section 59 of Indian Partnership Act and that Sri Dammalapati Srinivas, being its managing partner. Another objection raised was that the property mentioned in the schedule of the execution petition did not stand in the name of the petitioner and that it belonged to his son Sri Bhanu Mahesh.

9. Thus, validity and executability of the decree were questioned in terms of Section 47 CPC.

10. The first respondent resisted the above petition mainly contending that institution of the suit by it as an unregistered partnership firm and bar under Section 69(2) of Indian Partnership Act were never urged either in the suit or in the execution petition or in claim application filed by the son