Anil Kumar v. State Bank of Patiala & Ors.

Present:- Mr. J.K.Goel, Advocate, for the petitioner Mr. H.N.Mehtani, Advocate for respondent No.1 Mr. Ashok Arora, Advocate for respondents 3 to 8 Ms. Sonia G. Singh, Advocate, for respondents 9 to 14 Mr. Vikram Singh, Advocate for respondents 15 to 19 ... M.JEYAPAUL, J.

1. This shall dispose of Civil Revisions No. 6125 of 2011 and 2215 of 2012. As both the revisions have arisen out of a common order passed by the executing Court on two sets of objections, one by JD Nos. 1 and 2 and another by the legal representatives of JD No.4 in the execution proceedings initiated by the plaintiff-decree-holder, they were taken up for common disposal.

2. The objections raised by JD No.4 in the execution proceedings initiated by the bank- decree-holder were sustained by the executing Court. C.R.No. 6125 of 2011 2 Therefore, Civil Revision No. 2215 of 2012 was filed by the above decree-holder.

3. The objections raised by JD Nos. 1 and 2 were rejected by the executing Court, therefore, they have preferred Civil Revision No. 6125 of 2011 challenging the rejection thereof.

4. Civil Suit No. 206 of 1999 was instituted by the State Bank of Patiala, revision petitioner in Civil Revision No. 2215 of 2012, as against the partnership firm, namely, M/s Attri Machinery Store, and its partners. 4th defendant Sat Narain was shown as dead but the plaintiff-State Bank of Patiala did not choose to implead his legal representatives. Further, the 4th defendant Sat Narain was shown as son of Radha Krishan. Trial Court granted money decree in favour of State Bank of Patiala. The decree-holder filed an execution application for recovering the money due and payable by the partnership firm and its partners jointly and severally by bringing the property mortgaged to the bank for sale.

5. In their respective objections, JD Nos. 1,2 and 4 have contended that the execution petition was not maintainable, as a decree was passed against the 4th JD-Sat Narain son of Radha Krishan. Further, Sat Narain was already dead. A decree has been passed as against a dead person. Such a decree was a nullity in the eyes of law. Sat Narain was shown as son of Radha Krishan instead of Sadhu Ram; therefore, the decree has been obtained against a wrong person also. As regards the 1/3rd share of Sat Narain son of Sadhu Ram in the property mortgaged in favour of the bank, no execution could be laid, it was contended.

6. In the reply, the plaintiff contended that inasmuch as a decree has been granted as against the firm, all the partners are jointly and severally C.R.No. 6125 of 2011 3 liable to answer the decree granted in favour of the bank. It is quite meaningless to rake up the parentage of Sat Narain at this distance in time. Therefore, the decree-holder sought to dismiss the objections raised by JD Nos. 1 and 2 and 4.

7. The executing Court recorded a finding to the effect that no decree can be passed as against Sat Narain son of Radha Krishan who was not a partner of M/s Attri Machinery Store. No decree was passed as against one of the partners, namely, Sat Narain son of Sadhu Ram. Further, Sat Narain son of Sadhu Ram had died on 21.5.1996 itself, therefore, the trial Court has granted decree as against a dead person. Such a decree qua the dead person is a nullity. It is further observed by the trial Court that as regards 1/3rd share of Sat Narain son of Sadhu Ram in M/s Attri Machinery Store, the plaintiff cannot lay an execution petition for recovery of money. JD Nos. 2 and 3 shall be liable as partners of 1/3rd share each in M/s Attri Machinery Store. Therefore, the decree dated 27.4.2002 passed in favour of the bank shall remain enforceable only as against JD Nos. 1 to 3 to recover only 2/3rd of the decretal amount. The bank cannot recover the remaining 1/3rd amount either from JD Nos. 2 and 3 or from the legal representatives of Sat Narain son of Sadhu Ram. Having thus observed, the executing Court allowed the objections raised by the legal representatives of JD No. 4 and dismissed the objections raised by JD Nos. 2 and 3.

8. Learned counsel appearing for the legal representatives of JD No. 4 would submit that the suit against a dead person is a nullity. Father's name of Sat Narain has not been properly described. The revision as such filed by the bank is not maintainable, inasmuch as only an appeal would C.R.No. 6125 of 2011 4 lie against the order passed under Section 47 of the Code of Civil Procedure.

9. Learned counsel appearing for JD Nos. 2 and 3 would submit that a sum of Rs.3.5 lacs had already been deposited by JD Nos. 2 and 3. Therefore, interest portion of the loan amount could be waived.

10. Learned counsel appearing for the decree-holder would submit that there is no necessity to implead legal representatives of the partner of a partnership firm as per Order 30 Rule 4 of the Code of Civil Procedure. He would further submit that a revision would lie as against the orders passed by the executing Court under Section 47 of the Code of Civil Procedure. The difference in the name of father would not ineffectuate the decree passed in the presence of both parties. It is his further submission that the waiver of interest sought for at the execution stage is not sustainable.

11. As regards waiver of interest sought for by JD Nos. 2 and 3, I find that such a plea is not at all sustainable. After a long drawn battle, the bank has secured a decree for recovery of money. The debts are secured by mortgage of properties owned by the partners of the partnership-firm. The bank is a trustee of the public money deposited by the public. The bank is not supposed to casually waive off the interest even after a valid decree was obtained and the same was put to execution for recovery of money by bringing the property mortgaged in favour of the bank for sale. Further, the plea for waiver of interest cannot be a substantial objection to stall the execution proceedings initiated by the bank.

12. The 4th JD, Sat Narain was described as Sat Narain son of Radha Krishan but the legal representatives of the 4th JD have come out with C.R.No. 6125 of 2011 5 a plea that Sat Narain was the son of Sadhu Ram. By inadvertence, the bank has described Sat Narain as son of Radha Krishan. The legal representatives have come to know that a decree has been passed against their predecessor Sat Narain son of Sadhu Ram. If a defendant has been wrongly described, there is some meaning in raising an objection to the effect that the decree was obtained as against a wrong person. In the instant case, only father's name of 4th JD has been wrongly described in the proceedings of the suit. There is no other Sat Narain as one of the partners of M/s Attri Machinery Store. JD No.4 Sat Narain has been described as partner of M/s Attri Machinery Store. The legal representatives of 4th JD also have come to understand that a decree has been passed against their predecessor Sat Narain. In view of the above, I find that such a wrong description as to the name of father of a defendant would not nullify the decree passed as against him.

13. Order 30 Rule 4 of the Code of Civil Procedure reads as follows:- “ 4. Right of suit on death of partner, - (1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872 (9 of 1872), where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit. (2) Nothing in sub-rule(1) shall limit or otherwise affect any right which the legal representative of the deceased may have - (a) to apply to be made a party to the suit, or (b) to enforce any claim against the survivor or survivors.” C.R.No. 6125 of 2011 6

14. As per the above provision of law, even if one of the partners had died prior to the institution of the suit, there is no necessity to implead the legal representatives of the deceased-partner. In the instant case, JD No. 4 was not arrayed in his individual capacity. He had been arrayed as partner of the partnership-firm, namely, M/s Attri Machinery Store. The liability of the deceased-partner does not come to an end on the demise of the partner. Where a decree has been obtained as against a partnership-firm, all the partners are jointly and severally liable to answer the decree passed as against a partnership-firm. As the partners are jointly and severally liable to answer the decree passed as against the partnership-firm to the extent of their share in the firm, the legal representatives of one of the partners cannot lawfully contend that on the demise of one of the partners, liability owed by him comes to end and the decree, if any, passed as against the dead partner is inexecutable. Therefore, in my considered view, the executing Court without adverting to the above provision of law has come to a conclusion that the decree passed as against the partnership-firm and the partners would not bind the legal representatives of JD No.4 who died prior to the institution of the suit.

15. No appeal against an order determining any question under Section 47 of the Code of Civil Procedure, not being a decree within the ambit of Section 2(2) CPC, would lie. Revision is always entertainable as against such an order under Section 115 of the Code of Civil Procedure. Even otherwise, in the instant case, the revision has been filed by the bank invoking Article 227 of the Constitution of India to correct an error committed by the executing Court. Therefore, I find that the plea of the counsel appearing for the legal representatives of JD No.4 that the revision C.R.No. 6125 of 2011 7 is not maintainable in the eyes of law is found not sustainable.

16. The executing Court shall proceed to execute the decree in terms of the decree passed by the trial Court.

17. Consequently, Civil Revision No. 6125 bof 2011 stands dismissed and Civil Revision No. 2215 of 2012 stands allowed in the manner indicated above. October 30, 2012 JS ( M. JEYAPAUL) JUDGE