THE HON’BLE SRI JUSTICE K.C.BHANU C.R.P.No.4405 of 2010 ORDER: This civil revision petition is directed against the order dated 27.08.2010 in E.P.No.43 of 2010 in O.S.No.77 of 2004 on the file of the learned I Additional Senior Civil Judge, Kakinada. The said execution petition was filed under Order XXI Rules 54 and 66 to 68 C.P.C. for attachment and sale of E.P. Schedule properties for realisation of the decretal amount. The brief facts of the case are as follows: The petitioner-decree holder obtained a decree against judgment debtor No.1-partnership firm and its Managing Partner- judgment debtor No.2 for realisation of the amount due. Respondent Nos. 3 to 5 - Judgment Debtors are the partners of judgment debtor No.1. Item No.1 of E.P. Schedule is the property of judgment debtors 4 and 5. Item No.2 is the property of 5th judgment debtor. Item No.3 is the property of 3rd judgment debtor. It is the case of the petitioner–decree holder that judgment debtors 3 to 5 being partners of judgment debtor No.1 are liable to pay the decretal amount. Hence, their properties may be attached and sold for realisation of the decretal amount. Judgment Debtors 4 and 5 filed their counter. Their case is that schedule properties are their personal properties. Item No.1 of E.P. schedule is not the property of judgment debtor No.1 and it was purchased by them. Item No.2 of E.P. schedule was the property gifted to 5th judgment debtor by his father under registered gift deed dated 18.07.2001 and it is also not the property of 1st judgment debtor. Item No.3 of E.P. schedule was the property purchased by 3rd judgment debtor under registered sale deed dated 08.01.2007 from one Nadimpalli Lakshmi. Decree holder has no right to proceed against their personal properties. Attachment effected is liable to be raised. For realisation of the firm’s debt, their personal properties cannot be attached. Before the Court below, on behalf of the petitioner, PW1 was examined and Exs. A1 and A2 were marked and on behalf of respondents-judgment debtors 3 to 5, RW1 was examined and Exs. B1 to B3 were marked. The trial Court after considering the evidence on record came to the conclusion that simply because judgment debtors 3 to 5 are the partners of judgment debtor No.1 on the date of filing of the suit, their personal properties cannot be attached and sold in execution of the decree and held that the personal properties of judgment debtors cannot be attached and dismissed the E.P. duly raising the attachment of the schedule properties. Aggrieved thereby this revision is preferred. Heard the learned counsel for the petitioner and learned counsel for the respondents. Learned counsel for the petitioner contended that though judgment debtors 3 to 5 are not parties to the suit, under Order XXI Rule 50(2) C.P.C. they were impleaded as judgment debtors and hence, they are liable for the debts of the partnership firm. Therefore, the E.P. has to be allowed. Learned counsel for the respondents on the other hand contended that since judgment debtors 3 to 5 are not parties to the suit, their personal properties cannot be attached and that sub rule (2) of Rule 50 of Order XXI CPC has not been complied with and no opportunity was given to judgment debtors 3 to 5 to determine their liability to the extent of the debts incurred by judgment debtor No.1 which is the firm. Therefore, there are no grounds to interfere with the impugned order. The factual matrix is not in dispute. Judgment debtors 3 to 5 were not parties to the decree. On the ground that they are the partners of the judgment debtor No.1, they were impleaded by virtue of the order, dated 11.06.2008 of the Executing Court in E.A.No.923 of 2008 in O.S.No.77 of 2004 whereunder the decree holder filed a petition under Order XXI Rule 50 (2) C.P.C. to grant leave to file E.P. against judgment debtors 3 to 5 who are the partners of judgment debtor No.1 and the said petition was allowed on the same day granting permission to proceed against the partners of judgment debtor No.1. On this aspect, learned counsel for the petitioner relied upon the decision of the Hon’ble Supreme Court in GAMBHIR MAL PANDIYA AND OTHERS v. J.K.JUTE MILLS CO. LTD, KANPUR AND ANOTHER[1], wherein it was held at paragraph ‘6’ as follows: “Order 21, R. 50(2) of the Code deals with executions, but really is a part of the provisions relating to suits against firms. Those provisions are contained in O.30 of Code and must be viewed alongside to get the true meaning of the words. Order. 30 and the provisions of R.50 of O.21 were taken from O. XLVIII-a of the Rules of the Supreme Court in England. Though there are slight variations in language, the provisions of our Code are in pari materia with the provisions of the Rules of the Supreme Court, as amended in 1891. Under common law, an action against firms was not known. All actions had to be brought against the partners individually. After the Judicature Acts, rules were framed in 1883, which enabled actions to be brought against firms in the names of the firms.” Similarly in the decision of the Hon’ble Supreme Court in TOPANMAL CHHOTAMAL v. M/S. KUNDOMAL GANGARAM AND OTHER[2], it was held at paragraph ‘4’ as follows. “Then followed the decretal order. It is manifest from the pleadings and the judgment of the learned Civil Judge that when a personal decree was sought against respondents 2 to 6 on the same grounds that would have been open to the appellant for executing the decree against them under Order XXI Rule 50, C.P.C., the learned Judge, for specific reasons mentioned by him, refused to give the appellant the said relief and expressly confined it to the assets of the firm in the hands of the partners.” In MAHARANI MANDALSA DEVI AND OTHERS v. M. RAMNARAIN PRIVATE LTD. AND OTHERS[3], it was held by the Apex Court at paragraph ‘9’ as follows: “Now, in the instant case, none of the appellants is entitled to any special protection from the institution of the suit trader S.86 read with S.87B, Code of Civil Procedure. The Maharaja of Sirmur was entitled to this special protection, but he was not a party to the application under Order 21, Rule 50(2) of the Code of Civil Procedure. Nor is the decree against the firm other than the Maharaja of Sirmur a nullity. The affidavit filed on behalf of the appellants does not sufficiently raise a plea that the decree was the result of any collusion, fraud or the like. The affidavit incorrectly assumes that the decree passed on admission of the appearing partner, was a consent decree. Allegations of dishonesty and fraudulent concealment of the fact of the institution of the suit are made against Shib Chander Kumar, one of the partners of the firm, but no allegation of fraud or collusion is made against respondent No.1 It was not alleged that respondent No.1 was a party to any fraud or collusion or that it obtained the decree by fraud or collusion. The appellants alleged that their partners, Jagat Pershad and Shib Chander Kumar, had entered into the agreement dated September, 26, 1956 and had utilised the moneys received under it in fraud of the appellants and without their authority, but the appellants are not entitled to raise these pleas in the application under Order 21 Rule 50(2) of the Code of Civil Procedure. The appellants were admittedly partners of the firm of Jagat sons International Corporation at the time when the cause of action accrued. In the absence of any plea questioning the decree on the ground of collusion fraud or the like, respondent No.1 is entitled to an order under O. 21 R. 50(2) of the Code of Civil Procedure giving it leave to execute the decree against the appellants as partners in the firm. The third contention of Mr. Mukherjee must, therefore, be rejected.” Similarly, the Apex Court in ASHUTOSH v. STATE OF RAJASTHAN[4], held at paragraph ‘10’ as follows: “Both the contentions raised by the learned counsel appearing for the appellant have absolutely no merit. It is not in dispute that the decree was passed against the firm in which Smt. Dhanwanti Devi was also a partner. Under the provisions of the Partnership Act, one partner is the agent of the other. The partner is always liable for partnership debt unless there is implied or express restriction. In the instant case, notice was duly served on Smt Dhanwanti Devi and her husband at House No.80, B-Block, Sri Ganganagar. Sections 24 and 25 of the Partnership Act, 1932 can be usefully referred to in the present context which are reproduced hereunder:- “24 Effect of notice to acting partner.- Notice to a partner who habitually acts in the business of the firm of any matter relating to the affairs of the firm operates as notice to the firm, except in the case of a fraud on the firm committed by or with the consent of the partner. 25. Liability of a partner for acts of the firm.- Every partner is liable jointly with all the other partners and also severally, for all acts of the firm done while he is a partner.” So, from the above decisions coupled with the statutory provision of Order XXI Rule 50 (2) C.P.C., it is clear that the decree holder can claim that the decree be executed against any person as referred to in sub-rule (1) clauses (b) and (c) as being a partner in the firm and he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. Sub-rule (2) consists of two parts. It contemplates giving of notice to the partners who are not impleaded as parties to the suit. After receipt of the notice, if the partners admit that they are partners, leave has to be granted to the decree holder to proceed against them. Under the second part, where the partners dispute about their liability, then the Court has to determine and adjudicate the liability of the proposed partners who are not parties to the decree. That procedure has not been followed in the case on hand when the application has been filed by the decree holder. On the note put up by the office, on the same day it was allowed without issuing notice to the respondents, particularly judgment debtors 3 to 5. Therefore, when the leave is not properly granted to the decree holder, the question of execution basing on the improper leave to the decree holder does not arise. It can also be observed that the order in E.A.923 of 2008 in O.S.No77 of 2004 can be said to be nonest in the eye of law because no notice was given to judgment debtors 3 to 5 before granting leave to the decree holder. Therefore, the impugned order needs no interference by this Court in view of the fact that the leave to file execution petition against judgment debtors who are not parties to the decree is not in accordance with law. However, liberty is given to the decree holder to file an appropriate petition under Order XXI Rule 50(2) C.P.C. The civil revision petition is dismissed. There shall be no order as to costs. K.C.BHANU,J Dt. 30.03.2011 lvl THE HON’BLE SRI JUSTICE K.C.BHANU C.R.P.No.4405 of 2010 Dt. 30.03.2011 [1] AIR 1963 S.C. 243 [2] AIR 1960 SC 388 [3] AIR 1965 SUPREME COURT 1718 [4] (2005) 7 Supreme Court Cases 308