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

2. Sometime in 1947 the appellant filed a suit, Suit No. 533 of 1947, on the Original Side of the Chief Court, Sin, at Karachi, against the firm of Kundomal Gangaram, the respondent No. 1 herein, for the recovery of a sum of money alleged to be due to the appellant from the said firm. The firm was sued through one Kundomal alleged to be one of the five partners of the said firm, and the service of summons was effected on him as partner of the said firm. None of the other partner was impleaded individually in the suit. On November 8, 1948, the Chief Court, Sind, decreed the suit against the firm. By the time the decree came to be passed, India was partitioned into two Dominions, and the Chief Court, Sind, became a foreign Court and, therefore, the decree, being one passed by a foreign Court, became inexecutable in India. Thereafter, the appellant filed a suit in the Court of Civil Judge, Agra, being Suit No. 205 of 1949, on the basis of the said foreign judgment. To that suit the firm of Kundomal Gangaram was made the first defendant, represented by its partner Kundomal, and respondents 2 to 6, the other partners of the firm, were impleaded as defendants 2 to 6. The learned Civil Judge, Agra, decreed "the plaintiffs suit for Rs.with costs and future and pendente lite interest at 3 per cent per annum against defendant No. 1 and such property of the firm M/s. Kundomal Gangaram as may be found in the hands of defendants 2 to 6". No appeal having been filed against that decree, it has become final. In execution of the decree, the appellant attached certain properties of theat Agra mainly comprising of a shop and the assets therein. Respondents 2 to 6 objected to the attachment on the ground that the shop and the articles therein were not the assets of the firm Kundomal Gangaram, but were the personal properties of defendants 2 to 6. The learned Civil Judge held that the assets sought to be attached were not the assets of the firm, and that though the shares of respondents 3 to 6 therein were not liable to attachment, theshare of Kundomal Gangaram in the firm was validly attached. Kundomal Gangaram appealed to the High Court against that part of the order of the Civil Judge which was against him, and the decreens in respect of that order in so far as it excluded the liability of the other four partners. It may be mentioned that neither to the appeal nor to thethe respondents 3 to 6 were made parties. The High Court dismissed theon the ground that respondents 3 to 6 were not parties to the appeal or theThe High Court also allowed the appeal filed by the partners of the firm Kundomal Gangaram on the ground that the decree was only against the firm and its assets, and, therefore, it was not executable against the personal properties or the share or shares of the partners in the joint family property. The decreeholder filed the present appeal for establishing his right to proceed in execution against the personal properties of respondents 2 to 6.

Reasoning: 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.