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High Court Of Orissa
P. K. Mohanti, J.
LINGARAJ PAIKARAY - Appellant
Versus
RAGHUNATH CHHOTRAY - Respondent
Civil Revn. 301 Of 1979
Decided On : 12/22/1982
DECLARATORY DECREE - EXECUTABILITY - DECREE MERELY DECLARING RIGHTS OF PARTIES WITHOUT DIRECTING ANY ACT TO BE PERFORMED IS NOT EXECUTABLE - DECREE IN SUIT FOR DISSOLUTION OF PARTNERSHIP DECLARING THAT DEFENDANT HAS NO OTHER RIGHT AGAINST PLAINTIFFS OR PARTNERSHIP FIRM OR ITS ASSETS EXCEPT TO RECEIVE AMOUNT STANDING IN BOOKS OF FIRM IN HIS NAME AND VALUE OF HIS SHARE IN GOODWILL IS DECLARATORY AND NOT EXECUTABLE.
Fact of the Case:
Plaintiffs filed a suit for declaration that the defendant had ceased to be a partner of the partnership business with effect from a certain date, that the plaintiffs along with one Satish Ch. Bhattacharjee were the only partners of the said firm with effect from that date, that the resolution dated that date was validly passed, that the defendant had no other right against the plaintiffs or the partnership firm or its assets except to receive the amount standing in his name in the books of the firm and the value of his share in the good will assessed at Rs. 5,000/- and also for a permanent injunction restraining the said defendant from asserting any right against the plaintiffs or the partnership firm other than to receive the amount standing in his name in the books of the firm and the value of his share in the good will assessed at Rupees 5,000/-. The suit was decreed on the terms that a sum of Rupees one lakh four thousand five hundred forty two and seventy eight paise was standing to the credit of the defendant in the books of the firm on the date of his expulsion, that the defendant has ceased to be a partner of the partnership business with effect from the fourth day of April one thousand nine hundred and sixty four and that the plaintiffs and Satish Chandra Bhattacharjee since deceased were the only partners of the said firm with effect from the fourth day of April one thousand nine hundred and sixty four, that the resolution dated the fourth day of April one thousand nine hundred and sixty four was validly passed, that the defendant has no other right against the plaintiffs or the partnership firm or its assets except to receive the amount standing in the books of the said firm of Tapang Light Foundry and Co. in his name and the value of his share in the good will assessed at Rupees five thousand as awarded by the plaintiff Lingaraj Paikara.
Finding of the Court:
The decree in the suit is declaratory and not executory. It merely declares the rights of the parties and does not require either party to do or not to do anything. It does not contain any direction to the plaintiffs to pay any amount to the defendant. There is also no direction that the defendant would recover the amount from the plaintiffs by execution.
Issues: Whether the decree under execution is declaratory or executory.
Ratio Decidendi: A declaratory decree is one which merely declares the rights of the parties but does not direct any act to be performed. It embodies no definite order which can be enforced by execution. Though it declares certain rights out of which certain reliefs are to emerge, the decree itself does not provide for those reliefs.
Final Decision: Civil Revision allowed. Order of the executing Court set aside. Execution Case No. 9 of 1979 dismissed as not maintainable.
P. K. MOHANTI, J.
( 1 ) THE short question that requires determination in this Civil Revision is whether the decree under execution is declaratory or executory.
( 2 ) THE petitioners and the pro forma opposite parties Nos. 2 to 4 as plaintiffs brought original suit No. 605 of 1964 in the High Court of Calcutta for declaration that the defendant Raghunath Chhotray (O. P. No. 1 here) had ceased to be a partner of the partnership business of Tapang Light Foundry and Co. with effect from 4-4-1964; that the plaintiffs along with one Satish Ch. Bhattacharjee were the only partners of the said firm with effect from that date; that the resolution dated 4-4-1964 was validly passed; that the defendant Raghunath Chhotray had no other right against the plaintiffs or the partnership firm or its assets except to receive the amount standing in his name in the books of the firm and the value of his share in the good will assessed at Rs. 5,000/- and also for a permanent injunction restraining the said defendant from asserting any right against the plaintiffs or the partnership firm other than to receive the amount standing in his name in the books of the firm and the value of his share in the good will assessed at Rupees 5,000/ -. The suit was decreed on 22-4-77 in the following terms:-
". . . . . . It is declared that a sum of Rupees one lakh four thousand five hundred forty two and seventy eight paise was standing to the credit of the defendant in the books of the firm Tapang Light Foundry and Co. on the date of his expulsion. And it being recorded that the defendant has submitted to a decree as hereinafter stated. It is further declared that the defendant has ceased to be a partner of the partnership business of Tapang Light Foundry and Co. with effect from the fourth day of April one thousand nine hundred and sixty four and that the plaintiffs and Satish Chandra Bhattacharjee since deceased were the only partners of the said firm with effect from the fourth day of April one thousand nine hundred and sixty four. And it is further declared that the resolution dated the fourth day of April one thousand nine hundred and sixty four was validly passed. And it is further declared that the defendant has no other right against the plaintiffs or the partnership firm or its assets except to receive the amount standing in the books of the said firm of Tapang Light Foundry and Co. in his name and the value of his share in the good will assessed at Rupees five thousand as awarded by the plaintiff Lingaraj Paikara. In the event of the plaintiffs having incurred any expenses for and on account of the defendant by virtue of any statutory provision or otherwise it is ordered and decreed that the plaintiffs shall be at liberty to recover the same from the defendant in an appropriate proceedings and shall not be debarred from claiming the same only because of the decree passed in this suit. And it is further ordered and decreed that each party shall pay and bear his or their own costs of and incidental to this suit (to be taxed by the Taxing Officer of this Court ). And it is further ordered that an interim order passed in this suit and dated the twentieth day of December one thousand nine hundred and sixty seven shall continue till the seventeenth day of June one thousand nine hundred and seventy seven. "
( 3 ) ON the application of the defendant-opposite party No. 1, the aforesaid decree was transferred to the court of the Subordinate Judge, Bhubaneswar for execution. The defendant filed Execution Case No. 9 of 1978 for realisation of the sum of Rs. 1,04,542. 78 paise plus Rupees 5,000/- i. e. , in all Rs. 1,09,542. 78 paise by attachment and sale of the immovable properties of the plaintiffs. The plaintiff filed an objection under Section 47, C. P. C. challenging the executability of the decree. The objection was registered, as Misc. Case No. 9/79. The learned Subordinate Judge dismissed the same on 16-4-1979 holding that "though the decree is declaratory
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