Poosarla Visweswararao Bros. and Vuppala Nookayya Setty Vs. Vuppala Nookayasetti - Court Judgment

Excerpt:
civil - maintainability of execution petition - order 30 rule 1 and order 21 rule 15 of code of civil procedure, 1908 - one ex-partner in respect of decree obtained by dissolved firm applying for execution of same - held, execution petition being in continuation of proceedings an individual partner entitled to recover amount even after dissolution of firm. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by.....orderg. yethirajulu, j. 1. these two revision petitions arose out of the orders passed by the subordinate judge, anakapalli, in e.p31 of 1984 and 32 of 1984 respectively in o.s.65 of 1976. the revision petitioner is one of the partners of the plaintiff-decree holder firm and the respondent is the defendant in the suit and judgment debtor in the execution petition. the firm of the revision petitioner filed the suit for recovery of money on the basis of a promissory note and the suit was decreed in its favour. subsequently, the revision petitioner filed e.p.nos. 31 of 1984 and 32 of 1984 for different reliefs for the purpose of realization of the decree amount these execution petitions were dismissed by the lower court on the ground that they cannot be maintained by an individual partner.....

Judgment:
ORDER

G. Yethirajulu, J.

1. These two revision petitions arose out of the orders passed by the Subordinate Judge, Anakapalli, in E.P31 of 1984 and 32 of 1984 respectively in O.S.65 of 1976. The revision petitioner is one of the partners of the plaintiff-decree holder Firm and the respondent is the defendant in the suit and Judgment debtor in the execution petition. The Firm of the revision petitioner filed the suit for recovery of money on the basis of a promissory note and the suit was decreed in its favour. Subsequently, the revision petitioner filed E.P.Nos. 31 of 1984 and 32 of 1984 for different reliefs for the purpose of realization of the decree amount These execution petitions were dismissed by the lower Court on the ground that they cannot be maintained by an individual partner when the suit was decreed in favour of the firm.

2. The revision petitioner being aggrieved by the orders of the lower Court preferred these two revision petitions questioning their validity and legality. The suit was filed by a firm known as M/s. Poosarla Visweswararao and Brothers. It was decreed in favour of the firm. Subsequently, the firm was dissolved. After the dissolution of the firm, the revision petitioner as one of the partners filed the execution petitions for realization of the amount. The lower Court dismissed the execution petitions by observing that as the second appellant preferred appeal against the decree in the suit which is pending in the High Court, the decree holder cannot execute the decree by way of sale of attached properties for the time being and further observed that the revision petitioner being the Managing Partner is not authorized to collect the decree amount. Therefore, he cannot maintain the execution petition.

3. The learned Counsel for the revision petitioner submitted that since the execution petition is the continuation of the suit proceedings, an individual partner is also entitled to recover the amount subsequent to the dissolution of the firm in the decree passed in favour of the firm. He relied upon a judgment of the Allahabad High Court in Kedar Nath v. Firm Rekh Chand Dasu Ram, AIR 1983 All. 270, wherein Allahabad High Court while considering the scope of Order 21 Rule 15 and Order 30 Rule 1 of CPC, held thus:

'An application for execution by one of the partners of the dissolved firm can maintain on the basis of a decree passed in favour of the firm.'

4. I concur with the view expressed by the Allahabad High Court. An execution petition filed by one of the partners can be maintained when it was filed by one of the partners of a dissolved firm on the basis of a decree passed in favour of the firm.

5. I, therefore, find sufficient force in these revision petitions and I am inclined to allow them.

6. In the result, these revision petitions are allowed, the orders of the lower Court are set aside. Each party do bear its own costs.