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1975 Supreme(Pat) 38
HIGH COURT OF PATNA
H.L. Agrawal, J.
RAJINDRA PRASAD SINHA – Appellant
VERSUS
M/S KARAM CHAND THAPAR & CO. (COAL SALES) LTD. – Respondent
M.A. No. 314 of 1972
Decided On : 11th February, 1975
Messrs L.K. Choudhury and Parmanand Sharma for the Appellant; Messrs Bimal Bhusan Sen and Mihir Kumar Roy for the Respondent.
A person against whom a suit is dismissed cannot be considered a party to the suit within the meaning of Section 47 of the CPC and, therefore, cannot file an appeal under that provision.
Headnote:
CIVIL PROCEDURE CODE - SECTION 47 - APPEAL - MAINTAINABILITY - APPELLANT NOT A PARTY TO THE SUIT - DISMISSAL OF SUIT AGAINST APPELLANT - NO APPEAL LIES UNDER SECTION 47.
Fact of the Case:
Appellant, who was impleaded as a defendant in a suit for recovery of money, filed an objection petition in the execution proceeding challenging the validity of the decree passed against the defendant firm on the ground that it was dissolved on the date of the decree due to the death of one of the partners. The appellant had earlier filed a compromise petition in the suit stating that he was not a partner of the firm and the plaintiff agreed to exonerate him from the claim.
Finding of the Court:
The court held that the appellant was not a party to the suit within the meaning of Section 47 of the Code of Civil Procedure (CPC) as the suit against him was dismissed on the basis of the compromise petition, which amounted to a statement that he was wrongly impleaded as a defendant. Therefore, the appellant had no authority to file the objection petition under Section 47 of the CPC and the appeal was not maintainable.
Issues: 1. Whether the appellant was a party to the suit within the meaning of Section 47 of the CPC? 2. Whether the appeal was maintainable under Section 47 of the CPC?
Ratio Decidendi: 1. The court relied on the decisions in (1) Mt. Kusmi and others V. Sadasi Mahto and others (A.I.R. 1942 Patna 432) and (2) Katragadda China Ramayya V. Chiruvella Venkanraju and another (A.I.R. 1954 Madras 864) to hold that a person against whom a suit is dismissed cannot be considered a party to the suit within the meaning of Section 47 of the CPC. 2. Since the appellant was not a party to the suit, he had no authority to file the objection petition under Section 47 of the CPC and the appeal was not maintainable.
Final Decision: The appeal was dismissed as it was not maintainable under Section 47 of the CPC.
H.L. Agrawal, J.
This is Miscellaneous First Appeal under Section 47 of the Code of Civil Procedure on behalf of JUDGMENT : debtor No. 3.
2. In ORDER :to appreciate the various questions of law that arise for decision in this case, it is necessary to state the few relevant facts. Respondent no. 1 instituted Money Suit no. 77 of 1955 in the Court of the Subordinate Judge, Patna, against a firm namely, M/s Kameshwar Sinha & Company, and two of its partners, for realisation of Rs. 18,771/- due to it as the balance of the price of coal sold on credit to the firm, who was defendant No. 1. In that suit, the first two defendants did not appear in spite of service of summonses. The plaintiff and defendant No. 3, who is the appellant before me, filed a compromise petition. In the said compromise petition it was stated that the appellant was not a partner of the defendant no. 1 firm at all and the plaintiff-therefore, agreed to exonerate him from the claim in the suit "which was hereby withdrawn against him." Later on, the Court passed an exparte decree on the 26th June 1957 against the other two defendants. The plaintiff thereafter levied execution Case No. 1 of 1960. In the execution proceeding, the decree-holder proceeded against a sum of Rs. 5,000/- standing to the credit of defendant No. 1 in its Savings Bank Account in the General Post Office, Patna. On this action of the decree-holder, several proceedings were started from time to time by the appellant as well as some other persons as heir and legal representative of deceased partner of defendant No. 1. Firstly, an appeal against the JUDGMENT : and decree of the trial court was filed in this Court in forma pauperis which was registered as M.J.C. No. 550 of 1957. The M.J.C. application having been dismissed and the court-fee not having been paid on the memorandum of appeal within the time allowed, the appeal was dismissed for default. Then several miscellaneous cases under different provisions of the Code of Civil Procedure were filed in the execution proceeding from time to time and the matter had come up to this Court twice; firstly in Miscellaneous Appeal No. 348 of 1965 and secondly in Civil Revision No. 345 of 1969. It appears that the Miscellaneous Appeal and the Civil Revision were filed in the name of the JUDGMENT :-debtor firm itself, although through some or the other person. Repeated attempts had all through been made to circumvent and frustrate the attempt of the decree-holder to fall upon the aforesaid sum of Rs. 5,000/- standing to the credit of defendant No. 1 in its Savings Bank Account in the General Post Office, Patna. Ultimately, in the Civil Revision, this Court directed that the executing Court should proceed against the money in question under ORDER :21, rule 52 of the Code.
3. The appellant thereafter seems to have filed an application in the executing Court that the decree passed by the trial Court is a nullity, having been passed against defendant no. 2 (Choudhary Indra Narain Jha), as well who was already dead, and, therefore, the execution could not proceed. This argument has been repelled by the executing Court on various grounds, including that this plea was barred by the principles of res judicata.
4. In this Court Mr. L.K. Choudhury appearing in support of this appeal contended that the decree against defendant no. 1 itself was in executable in as much as the defendant firm was dissolved or stood dissolved on the date of the passing of the decree as defendant no. 2 (Choudhary Indra Narain Jha) one of the partners, had died. The contention has got no substance and must be rejected for various reasons. Firstly, it is not always necessary that on the death of a partner, a firm, must be dissolved. It all depends upon the term of the agreement of the partnership between them. No evidence has been led on behalf of the appellant on this question. Secondly, the proposition as such has also got no substance in the eye of law. It is well settled that if
