Execution of Decree--Partnership Firm--Partners in the judgment debtors firm can be proceeded against individually, only if the conditions laid down under Order 21 Rule 50(2) CPC are satisfied.

Mr. Raj Mohan Singh, J.: - Vide this common order, CR No.5887 of 2015 titled Paramjeet Singh Bhalla Vs. Baljit Kaur and others, CR No.5888 of 2015 titled Paramjeet Singh Bhalla Vs. Gurdeep Kaur and others and CR No.5889 of 2015 titled Paramjeet Singh Bhalla Vs. Baljit Kaur and others are being disposed of. Facts are taken from CR No.5887 of 2015.

2. Petitioner has assailed the order dated 04.07.2015 passed by Additional District Judge, Amritsar in execution vide which the objections filed by the petitioner against the execution of award dated 03.04.2007 passed by Motor Accident Claims Tribunal, Amritsar (for short ‘the Tribunal’) were dismissed and warrants of attachment against the property of the petitioner were issued.

3. Brief facts of the case are that respondents No.1 and 2 filed a claim petition under Section 166 of the Motor Vehicles Act for grant of compensation on account of death of their son Amandeep Singh in a vehicular accident which took place on 18.10.2004. The claim petition was filed by impleading owner of the offending vehicle i.e Neeraj Kansal as partner of M/s Param Ply Palace, Sawinderjit Singh @ Sarinderjit Singh as driver of the offending vehicle and the Insurance Company. The petitioner was not impleaded as party respondent in any capacity. Respondents were proceeded against ex parte in the claim petition and accordingly, an award was passed by the Tribunal on 03.04.2007, awarding an amount of Rs.2,25,000/- along with interest @ 6% per annum w.e.f 07.04.2005 against the owner and the driver of the offending vehicle.

4. Though petitioner was not impleaded as party before the Tribunal, but he was impleaded in execution for the first time alleging him to be a partner in M/s Param Ply Palace i.e. the alleged owner of the three-wheeler. No notice of claim petition was ever served upon the petitioner. The award was passed ex parte against the respondents who were impleaded in the claim petition. No award was passed against the petitioner. No opportunity was afforded to the petitioner. The partnership firm which was constituted between Neeraj Kansal and the petitioner was dissolved even before accident in the year 2003. The partnership had ceased to exist from the year 2003 onwards. The said firm was assessed in terms of income tax upto the year 2003 only and thereafter, the same was dissolved. In the execution, respondents No.1 and 2 also filed list of properties of the judgment debtors. The private properties of the petitioner were included in the said list, which were never charged with any liability of the firm. On receipt of notice from the executing Court, petitioner filed his objections. The objections have been dismissed without affording any opportunity to the petitioner to lead evidence and even to prove his case. Even the execution filed against Neeraj Kansal was dismissed as withdrawn on 19.02.2011 and thereafter, the second execution was filed.

5. Learned Senior Counsel for the petitioner submitted that firstly the petitioner was never party to the claim petition. The partnership firm had ceased to exist w.e.f the year 2003 onwards and on the date of accident, the said firm was not in existence. Neeraj Kansal was the exclusive owner of the offending vehicle, but in the execution, the petitioner has been illegally impleaded and his personal properties have been subjected in execution without ascertaining the facts that the same were never charged with the liability of the firm. Even the execution has been withdrawn qua Neeraj Kansal on 19.02.2011. Learned counsel further submitted that even if, it is presumed for the sake of arguments (facts denied altogether) that the partnership is in existence, then the first liability to enforce the debt has to be from the property of the firm. The personal properties of the partner cannot be made subject matter of recoveries in view of Section 49 of the Partnership Act. Learned Senior Counsel submitted that the alleged partnership firm was unregistered f