JUDGMENT :- This is a revision application filed by a retired partner of the firm against which firm money decree has been passed by the Court. After passing of the decree, the decree-holder wanted to execute the same against the petitioner on the ground that he was a partner of the firm at the time of the suit transaction. The petitioner claims to have retired from the partnership. The plaintiff filed the requisite application to the Executing Court under O.21, R.50(2) of the Civil P.C. for bringing on record the petitioner and other partners of the defendant-firm so that he could execute the decree against them individually. This was done by him by taking out a notice in that behalf. This notice was opposed by the present petitioner on various grounds, all of which have been negatived by the trial Court and an order has been passed that the execution should proceed against the present petitioner. It is this order which the petitioner wants to be revised by this Court.

2. The facts relevant for the purpose are as follows :-

For the sake of convenience, the parties will be referred to with reference to their position in the trial Court save and except that the petitioner, who was respondent No. 4 in the trial Court will be referred to as 'petitioner' only.

One Miss Geetaben N. Jatania who was defendant No. 2 in the suit had deposited a sum of Rs. 7,000 with the firm M/s. Damodar Vithaldas, which was defendant No. 1 in the suit. The firm/defendant No. 1 executed a deposit receipt in favour of said Miss Jatania/defendant No. 2. It is not disputed that said Miss Jatania/defendant No. 2 assigned her right, title and interest in the said deposit receipt in favour of the plaintiff.

About the next fact there is a slight ambiguity. Contention of the present petitioner is that he retired from the partnership firm/defendant No. 1 on 31-10-1976. However, this date is also referred to as 24-10-1976 in the judgment of the trial Court. Whatever that may be, it is an admitted fact that the present petitioner retired from the partnership firm/defendant No. 1 after the execution of the deposit receipt by the firm in favour of defendant No. 2.

On 15-10-1979 the plaintiffs filed a suit against the firm-defendant No.1 and also against defendant No. 2, Miss Jatania for recovery of the amount due under the deposits. In the said suit decree was passed on 17-6-1980 against the firm/defendant No.1 for a sum of Rupees 9,992.91 ps. The decree directed that amount was to be refunded by instalment of Rs. 300 each. The first instalment was to be paid on or before 15th day of each month. On 26-9-1980, the plaintiffs took out Miscellaneous Notice No. 1781/80 against the present petitioner Jayantilal Mohanlal, who was shown as respondent No. 4 in the said notice and against some other respondents. By the application in question the plaintiffs sought to bring on record the partners of the firm/defendant No. 1 so that the plaintiff could execute the decree against the said partners also. Evidently, the application was made under O.21, R.50(2) of the Civil P.C. The learned Judge who heard the notice, however, appears to have taken the view that such an application was not competent because the original judgment-debtor, defendant No.1, had not made any default in payment of the decretal instalment. The learned Judge observed that the original judgment-debtor, defendant No. 1, was always ready and willing to pay the amount. I may state here that the fact that on the date when the said application viz. Miscellaneous Notice No. 1781/80 was made, the firm/defendant No. 1 was ready and willing to pay the amount of decretal instalment, is not disputed before me. As a matter of fact it has been the specific contention of the present petitioner in the trial Court that the original firm/defendant No. 1 against whom the decree was passed had in fact offered the amount of the instalments to the plaintiff but that the plaintiff themselves refused to accept the amount. This positi

Click Here to Read the rest of this document