Case: Topanmal Chhotamal Vs. M/s. Kundomal Gangaram

subsequent proceedings shall, nevertheless, continue in the name of the firm."The gist of the said provisions may be stated thus: A decree against a firm can be executed (i) against the property of the partnership, (ii) against any person who has appeared in the suit individually in his own name and has been served with a notice under Rule 6 or 7 of Order XXX of C. P. C., (iii) against a person who has admitted on the pleadings that he is or has been adjudged a partner, or (iv) against any person who has been served with notice individually as a partner but has failed to appear. The decree against the firm can be executed against the personal property of such persons.3. So stated the legal position is unexceptional and indeed it has not been disputed by the learned counsel for the respondents, but what is contended is that the decree sought to be executed expressly excluded personal liability of the partners and, therefore, notwithstanding the provisions of Order XXI, Rule 50, the executing Court is precluded from going behind the decree. The decree consisted of two parts. The first part of the decree reads :"I decree the plaintiffs suit for Rupees 12,140-1-0 (twelve thousand one hundred and forty and anna one only) with costs and future and pendente lite interest at 3 p. c. p. a. against defendant No. 1 ...... ......." If those words exhausted the decree, the provisions of Order XXI, Rule 50, were automatically attracted, for the decree was against the firm. But the decree continued to state :"any such property of the firm M/s. Kundomal Gangaram as may be found in the hands of defendants 2 to 6."This part of the decree would be redundant if it was intended only, as the learned Attorney-General contended, to convey nothing more than the idea that the decree was against the assets of the firm, for that was really the effect of the first part of the decree. A decree against a firm without any further directions can be executed, subject to the provisions of Order XXI, Rule 50, C. P. C., against the properties of the firm in the hands of its partners. To avoid tautology, it is therefore necessary to read the decree as a whole to fit in the two parts in an integrated scheme. So construed, the reasonable interpretation would be that the first part gave a decree against the firm, and the second part confined its operation to the assets of the firm in the hands of its partners.4. At the worst the decree can be said to be ambiguous. In such a case it is the duty of the executing Court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the Court would certainly be entitled to look into the pleadings and the judgment : see Manakchand v. Manoharlal, 71 Ind. App. 65 : (AIR 1944 P. C. 46).In the plaint in the Agra suit, Suit No. 205 of 1949, not only relief was asked for against the firm, but also a personal decree was claimed against defendants 2 to 6. The said defendants inter alia raised the plea that a personal decree could not be passed against them because they were not made parties to the suit filed in the Chief Court, Sind, and were not personally served therein. The learned Civil Judge, Agra, in accepting the plea made the following observation :"The defendants 2 to 6 were not made parties in Suit No. 533 of 1947 and were not individually served in that case. I think, therefore, the plaintiff cannot get a personal decree against defendants 2 to 6."After citing the relevant passage from the decision of the Madras High Court in Sahib Thambi Marakayar v. Hamid Marakayar, ILR 36 Mad. 414 , the learned Civil Judge concluded thus :"That being the law there is no reason for construing the decree obtained by the plaintiff in Suit No. 533 of 47 as creating a larger liability against the defendant partners of the firm than to make the partnership property in their hands liable. I hold, therefore, that a personal decree against defendants 2 to 6 cannot be given but only as regards the property of the firm defendant No. 1 which may be found in their hands. The plaintiff is thus entitled to a decree for Rs. 12,140-1-0 with costs further and pendente lite interest at 3 p. c. p. a. against defendant No. 1 as may be found in the hands of defendants 2 to 6."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.5. The question is whether in such circumstances an executing Court can go behind the decree and give the relief to the appellant which was expressly denied to him in the suit. The question so posed can only have one answer. It is a well-settled principle that a Court executing a decree cannot go behind the decree : it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit.If the contention of the appellant were to be accepted, it would contravene the said principle; for, while the decree as construed by us, has, directed that it should not be executed against the personal properties of the partners, the executing Court would be directing execution against the said partners. While the decree excluded personal liability, the executing Court would be imposing the same. This cannot obviously be done.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]This part of the decree would be redundant if it was intended only, as the learnedcontended, to convey nothing more than the idea that the decree was against the assets of the firm, for that was really the effect of the first part of the decree. A decree against a firm without any further directions can be executed, subject to the provisions of Order XXI, Rule 50, C. P. C., against the properties of the firm in the hands of its partners. To avoid tautology, it is therefore necessary to read the decree as a whole to fit in the two parts in an integrated scheme. So construed, the reasonable interpretation would be that the first part gave a decree against the firm, and the second part confined its operation to the assets of the firm in the hands of itsis 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 theled principle that a Court executing a decree cannot go behind the decree : it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit.If the contention of the appellant were to be accepted, it would contravene the said principle; for, while the decree as construed by us, has, directed that it should not be executed against the personal properties of the partners, the executing Court would be directing execution against the said partners. While the decree excluded personal liability, the executing Court would be imposing the same. This cannot obviously be done.