Civil Revision No.233 of 2006 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.233 of 2006 Date of Decision: March 03, 2008 Yadwinder Singh ...Petitioner VERSUS The Punjab State Cooperative Supply Marketing Federation Ltd. Chandigarh and others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.A.K.Kalsy, Advocate, for Mr.NDS Mann, Advocate, for the petitioner. Mr.G.S.Sandhawalia, Advocate, for respondent No.1. ***** RANJIT SINGH, J. Yadwinder Singh is the petitioner, who has impugned the order passed by Addl.Civil Judge (Senior Division), Sangrur for dismissal of the execution petition pending against him. The Punjab State Cooperative Supply and Marketing Federation Ltd., Markfed Civil Revision No.233 of 2006 : 2 : initiated arbitration proceedings against M/s Bhagwati Rice Mills, Dhuri and Shri S.D.Bhalla was appointed as an Arbitrator. He gave award in favour of the Markfed, which was being executed before the court of Addl.Civil Judge (Senior Division), Sangrur. The petitioner is claiming that he was not the partner of the firm M/s Bhagwati Rice Mills and had not signed the agreement as alleged and the award had been made rule of court in which M/s Bhagwati Rice Mills alone was being proceeded against. It is further urged that none of the partners was arrayed as a party. It is then urged that the petitioner was never a partner of M/s Bhagwati Rice Mills, Dhuri and as such the decree which is pending against M/s Bhagwati Rice Mills cannot be executed against the petitioner. The learned counsel appearing for the petitioner has raised two-fold submission to challenge the impugned order. He would firstly submit that petitioner Yadwinder Singh is not the partner of the firm and as such the decree cannot be executed against them. He further contends that even if he was a partner, the proceedings held against him would be in violation of Order 21 Rule 50 CPC, whereby he was required to be served with specific notice. The trial court found that petitioner was a partner of firm M/s Bhagwati Rice Mills as on 5.11.1982 and as such would not be able to escape the liability arising against him as a partner. It is in this background urged by the counsel representing respondent No.1 that the main ground urged by the petitioner to impugn the order as such was found against him and he cannot be heard now to say that the application could have been decided in terms of Order 21 Rule 50 CPC. Civil Revision No.233 of 2006 : 3 : The counsel for the petitioner has drawn my attention to the case of Gambhir Mal Pandiya (since deceased) and after him his heirs and legal representatives and others Vs. J.K.Jute Mills Co.Ltd., AIR 1963 Supreme Court 243 in support of his contention. The Hon'ble Supreme Court while interpreting the provisions has observed that Order 21 Rule 50 which deals with the executions, is really a part of the provisions relating to suits against firms contained in Order 30 and must be viewed alongside to get the true meaning of the words. The phrase “The liability of such person” is referred to communicate that Order 30 permits suits to be brought against the firm. It is then observed that the summons may be issued against the firm or against persons who are alleged to be partners individually. But, however, the suit only proceeds against the firm. Any person who is summoned can appear and prove that he is not a partner and never was. It is further observed that if he raises the defence, he cannot defend the firm. Observation further is that the persons who admit that they are partners may defend the firm and take as many pleas as they like but cannot enter upon issues between themselves. Talking about the decree passed in such execution, it is held that such a decree is capable of being executed against the property of the partnership and also against the two classes of persons individually. They are (1) the persons who appeared in answer to summons served on them as partners and either admitted that they were partners or were found to be so and (2) persons who were summoned as partners but stayed away. The Hon'ble Supreme Court has further observed that the decree can also be executed against persons who were not summoned in the suit as partners and in that Civil Revision No.233 of 2006 : 4 : case Rule 50(2) of Order 21 gives them an opportunity of showing cause and the plaintiff must prove their liability. In my considered opinion, the ratio of law laid down in this case would not apply to the facts of the present case. It is seen that the petitioner is taking a contradictory plea. On the one hand he is showing that he is not partner of the firm. If that is the stand taken by the petitioner, then he was at liberty to so urge and substantiate his plea. In that eventuality, he is not permitted to raise the defence and cannot defend the firm as such. He could have asked for opportunity under Order 21 Rule 50(2) if he had considered himself to be partners of the firm. This is the gist of the ratio as can be culled out from the judgment as noticed above. The case of Ravindra Finance Versus Yaanai Tobacco Co. and others, AIR 1979 MADRAS 25 again would not apply to the facts of the present case. Here the case set up by the petitioner is that he was not a partner. This has been held against the petitioner. He cannot now be heard that he be given an opportunity to raise his plea during the execution stage. Dismissed. March 03, 2008 ( RANJIT SINGH ) ramesh JUDGE