The finality of a decree, the distinction between a proprietary concern and a partnership firm, and the applicability of the Indian Partnership Act, 1932 and Order 9 Rule 13 CPC in execution proceedings.

Raj Mohan Singh, J.

Petitioner has preferred this revision petition against the order dated 13.11.2018 passed by the executing Court whereby objections filed by the petitioner were dismissed.

2. Tarsem Lal Rajinder Kumar, Commission Agents through Tarsem Lal as sole proprietor filed a suit bearing No.742-1 on 25.11.1995 for recovery of Rs.3,22,646/- along with interest against partnership firm M/s Girdhar Rice Mills and its partners on account of purchase of paddy by the partnership firm.

3. The suit was decreed by the trial Court vide judgment and decree dated 15.12.1997. Respondents No.5 to 7 were proceeded against ex parte.

4. Thereafter, the decree holder Tarsem Lal filed execution petition on 17.07.1998 for execution of said decree. The mode of execution was by way of attachment and sale of moveable and immoveable properties of the judgment debtor.

5. Defendant No.6 Subhash Chander filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree. On 11.09.1999, he made a statement before Additional Civil Judge (Senior Division), Muktsar that during pendency of the application, he shall not sell the land and machinery of M/s Girdhar Rice Mills. Order was passed on the application filed by Subhash Chander for staying the execution till the decision of the application under Order 9 Rule 13 CPC filed by him. During course of arguments on 11.09.1999 before Additional Civil Judge (Senior Division), Muktsar, learned counsel for the decree holder stated that if judgment debtor No.6 is ready to give bank guarantee or surety to the tune of the suit amount, the decree holder has no objection in staying the execution. Learned counsel for judgment debtor No.6 stated that they are ready to give undertaking in the Court that they will not sell any land or machinery of M/s Girdhar Rice Mills against whom the decree was passed till decision of the application under Order 9 Rule 13 CPC. In view of aforesaid, order dated 11.09.1999 was passed and file of Subhash Chander (JD No.6) and execution thereof was stayed with an observation that judgment debtor No.6 remained bound by the undertaking and statement given in the Court in all respects.

6. The application under Order 9 Rule 13 CPC was ultimately dismissed by the trial Court on 11.01.2007. The appeal filed against the said order before the Additional District Judge, Muktsar was dismissed on 22.12.2007. Revision petition was filed in the High Court and the same was also dismissed on 31.03.2009. In this way, ex parte proceedings against judgment debtor No.6 became final. After dismissal of the application under Order 9 Rule 13 CPC, execution petition filed by the decree holder was dismissed in default.

7. The present execution was filed by Rajinder Kumar on 21.05.2017 alleging himself to have succeeded in the business of the proprietary concern i.e. Tarsem Lal and Rajinder Kumar, Commissions Agents. The objections filed by judgment debtors No.5 and 6 have already been dismissed by the executing Court vide order dated 24.07.2018. The operative part of the said order reads as under:-

"After going through the case file and hearing the learned counsel for the parties, the Court is of the view that objections are without any merit and they are filed only to delay the proceeding of the present matter. The objector has nothing brought on record on which false and frivolous ground the DH has filed the execution. The perusal of the file shows that decree was passed on 15.12.1997 and an application under Order 9 Rule 13 was filed by the defendant and at this Ld. Civil Judge (Sr. Divn.) vide order dated 11.09.1999 stayed the execution. Regarding this undertaking was given by the JD. The proceeding under Order 9 Rule 13 were contested between the parties up to the Hon'ble High Court and the matter was decided in the Hon'ble High Court on 31.03.2009. At this stage parties have stated at bar that no appeal or revision pending against the said order in any Hon'ble Court, so the Court