1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURSIDCITION APPEAL NO. 80 OF 2010 IN NOTICE OF MOTION NO. 46 OF 2009 IN INSOLVENCY PETITION NO. 46 OF 2002 B.D. Agarwal and another ).. Insolvents Ex-Parte Mr. Ghisalal C. Shah ).. Petitioning Creditor Bansidhar Agarwal ).. Appellant (Org.Applicant) Versus 1) Official Assignee, High Court, Bombay ) 2) G.C. Shah ).. Respondents Mr. S.A. Tawate for the Appellant. Mr. K.P. Jain i/b Ms. Nisha Parmar for Official Assignee. Mr. Y.C. Parikh- Official Assignee. CORAM : ANIL R. DAVE, C.J. AND S.C. DHARMADHIKARI, J. DATED : 22ND FEBRUARY 2010 P.C. : Being aggrieved by an order dated 1st December 2009 passed in Notice of Motion No. 46 of 2009, this Appeal has been filed by the persons who have been declared Insolvents. 2 2. The Facts giving rise to the present Appeal in a nutshell are as under : The Appellants were admittedly Partners of Defendant No.1 partnership firm against which Summary Suit No.2696 of 2000 had been filed. The said Suit had been decreed on 24th July 2001. Subsequently, an order of adjudication of insolvency in respect of the present Appellants had been passed on 3rd June 2003. 3. Being aggrieved by the ex-parte decree dated 24th July 2001 passed in the afore-stated Summary Suit, the present Appellants had filed Notice of Motion being Notice of Motion No. 605 of 2003 for setting aside the said ex-parte decree. Ultimately, on 7th April 2003 the said Notice of Motion had been withdrawn. Thereafter the Appellants had filed Notice of Motion No. 54 of 2006 for annulment of an order whereby they had been adjudicated as insolvents. The said Notice of Motion had been dismissed on 3rd October 2006. Notice of Motion No.46 of 2009 was filed by the present Appellants-Insolvents praying that the 3 order dated 3rd June 2003 declaring them as insolvents be quashed and set aside. 4. After hearing the learned Advocates, the learned Single Judge dismissed the aforesaid Notice of Motion. 5. The learned Advocate appearing for the Appellants- Insolvents has submitted that the impugned order passed by the learned Single Judge confirming the order dated 3rd June 2003 whereby the Appellants were declared Insolvents is not just and proper for the reason that the Appellants were not party to the Suit in which decree had been passed against Kota Stone Industries, in which the Appellants were admittedly Partners. According to the learned Advocate, the decree passed against the firm would not bind its Partners and, therefore, no action could have been taken against the Appellants for the recovery of the amount due and payable by Kota Stone Industries which was Defendant No.1 in Summary Suit No. 2696 of 2000. 6. On the other hand, it has been submitted by the learned Advocate appearing for the Petitioning-Creditor that, as 4 Partners of Kota Stone Industries, the present Appellants are liable to pay the dues of the firm in which they were Partners. 7. The learned Advocates have cited different judgments to substantiate their respective cases. 8. We have heard the learned Advocates and have perused the impugned order passed by the learned Single Judge. We have also considered the judgments cited by the learned Advocates. 9. Upon hearing the learned Advocates and looking to the impugned order, we find that the learned Single Judge had rightly dismissed the Notice of Motion. According to us, the Appellants had already made an effort in the past for getting the order dated 3rd June 2003 quashed by filing Notice of Motion No. 54 of 2006. The said Notice of Motion had been dismissed on 3rd October 2006. 10. Moreover, an effort was made by the Appellants for getting ex-parte decree passed in Summary Suit No.2696 of 2000 5 set aside by filing Notice of Motion No. 605 of 2003. However, the said Notice of Motion was ultimately withdrawn on 7th April 2003. 11. This is nothing but an effort to see that the recovery proceedings are stalled. Law laid down by the Hon’ble Supreme Court in the case of Ashutosh vs State of Rajasthan and others, 2006 (1) Bom. C.R. 760, is to the effect that a decree passed against a partnership firm can also be executed against the partners and the decreetal amount to be recovered from the partnership firm can be recovered from its partners. 12. Looking to the aforestated facts, we are of the view that the Appeal is devoid of any merit and, therefore, the same is dismissed with no order as to costs. CHIEF JUSTICE S.C. DHARMADHIKARI, J. uday/judgments2010-app80-10