JUDGMENT :- One Nanubhai Harjiyan as the manager and co-sharer of a Hindu undivided family firm running in the name of Messrs Lalji Bhimji, at Amreli, filed a Regular Civil Suit No. 55 of 1947-48 in the Civil Court of the then State of Baroda, against the Governor General-in-Council of the Indian Dominion as the owner of the Bengal-Assam Railway for recovering an amount of Rs. 8500 in all on the basis of total loss of a consignment booked at Sialda Railway Station of Calcutta in favour of the plaintiff-firm to be delivered at Amreli. The summons was issued on the defendant as described in the plaint and since there was no appearance, the suit proceeded ex parte. A decree for the sum of Rs. 8500 together with running interest at 3% on Rs. 5,141 and odd and costs of the suit came to be passed against the defendant on 13-11-1938. The plaintiff-firm thereafter filed a Regular Darkhast No. 65 of 1951 in the Court of the Civil Judge (J. D.) at Amreli - it being the successor Court of the original trial Court on the merger of the State of Baroda with the Indian Union. That was filed on 13-11-48 for recovering the amount due under the decree by calling upon the judgment-debtor to pay the amount failing which to recover the same by attachment and sale of the movable property of the judgment-debtor. In that Darkhast a notice under O. 21, R. 22 of the Civil Procedure Code was issued against the judgment-debtor and though served no one appeared on behalf of the judgment-debtor. From the endorsement on that Darkhast it further appears that the amount was not paid though the judgment-debtor was directed to pay up the amount. Thereafter since the Court found that the property sought to be attached was not mentioned by the decree-holder in his Darkhast, the Darkhast came to be dismissed directing the costs to be paid by the judgment-debtor. That order is dated 8-1-52. Thereafter another Darkhast No. 92 of 1953 was filed by the decree-holder in the same Court against the judgment-debtor on 11-11-53 and that came to be disposed of on 29-12-54.

2. The same Nanubhai Harjivan has then filed Regular Darkhast No. 82 of 1955 against the judgment-debtor in the Court of the Civil Judge at Amreli for recovering the amount due under the decree by attachment and sale of the property. He has therein stated that the original joint Hindu family firm running in the name of Messrs. Lalji Bhimji of which he happened to be the manager, has been changed into a partnership firm and that he has been the manager and partner of the said firm. It is that way that he has filed the Darkhast on behalf of the partnership firm running in the name of Lalji Bhimji. So far as the judgment-debtor is concerned, it has been stated that all the rights and liabilities of the Bengal Assam Railway have now merged in the Union of India and that, therefore, a notice may be issued to the Union of India calling upon the same to pay up the amount and on its failure to do so, to recover the amount by attachment and sale of the property found at the Railway Station of Amreli including the cash amount found there. The amount claimed in the Darkhast is Rs. 10,789-6-6. It has been signed by one Kakubhai Kanji, the holder of power of attorney for one Kanji Lalji a partner in the firm of Messrs. Lalji Bhimji and also by Nanubhai Harjivandas in his personal capacity. After the Darkhast was filed on 30-4-55, an order for issuing notice to the judgment-debtor was issued. The Western Railway Administration through its advocate then appeared before the Court and filed his objections at Ex. 8 in that Darkhast. He inter alia contended that the decree under execution was in favour of M/s. Lalji Bhimji, a joint Hindu family firm and the firm executing the decree of Lalji Bhimji is a partnership firm and that way is a separate legal entity; that, therefore, the firm executing the decree cannot be said to be the decree-holder as such entitled to execute the decree; that the execution application is barred

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