Decided on March 02,1950



Panigrahi, J. - (1.) This appeal is directed against the order of the District Judge, Cuttack, permitting the decree-holder to implead the present appellants as judgmentdebtors under order 21, Rule 60 (s), Civil P. C. The decree-holder obtained his decree in Original Suit no. 18/193 of 1932 31 in the Court of the Munsif against Messrs. Biss-warlali Kishori Das alias Biseswarlal Kishorilal alleged to be a firm of Commission Agents. The decree was passed on 24th May 1933 and affirmed in appeal on 19th September 1933 and execution was taken out against the judgment-debtor in the year 1935 but it was unsuccessful. A second execution petition was filed on 28th July 1938 in execution case no. 333 of 1938, in which the judgment-debtor was described as Biseswarlal Kishorilal, Firm, Proprietor Mangturam Kishorilal, Mangturam appeared and objected to the execution of the decree against him on the ground that he was not a partner of the firm. The decree-holder, however, did not press his execution and allowed it to be dismissed on 19th November 1933, and the miscellaneous case filed by Mangturam was allowed. The decree holder thereafter started a third execution case in Execution case so. 222 of 1941 and described the judgment-debtor this time as Kishorilal Mangturam Kishorilal Firm and impleaded the present appellants as the legal representatives of the judgment-debtors. This execution case was also dismissed on 11th November 1941. A fourth Execution case No. 184 of 1944 was thereafter started on 19th August 1944 in which the judgment-debtor was described as Biseswarlal Maegturam Kishorilal, Firm, Proprietors Maturi Mall and Jogeswar, the present appellants. This execution case was also dismissed and the Miscellaneous case no. 161 of 1944 filed by the appellants as objectors was consequently not pressed. Then the fifth execution case NO . 229 of 1946 was started against the present appellants, who started a Miscellaneous case NO, 147 of 1946. This miscellaneous case was allowed by the executing Court on 22nd January 1946, who absolved the appellants from any liability under the decree sought to be executed. The decree holder thereafter filed, on 4th January 1946, a petition under Order 21, Rule 60, Civil P. C. for leave to execute the decree against the appellants as undisclosed partners of the judgment-debtor firm of Biseswarlal Kishorilal.
(2.) The undisputed facts are that Biaeswarlal had a son, Mangturam. The appellants are the grandsons of Mangturam. Kishorilal, their father is the son of Mangturam. Appellant 2, Jogeswar, is still a minor and was not born at the time of the passing of the decree. Kishorilal died a few years ago while Biseswarlal is said to have died some forty years ago. It is also said that the firm, Biseawarlal Kiehorilal was dissolved about 14 years ago when appellants Manturi Mall was a minor and appellant Jogeswar has not even been born. The appellants case is that the judgment debtor firm of Biseswarlal Kishorilal was not joint Hindu family business; that they did not inherit any property belonging to the judgment-debtor firm; and that the decree is now barred by limitation. They further allege that the firm was started by Kishorilal himself and that it existed for only about a year. The case of the decree-holder in the lower Courts was that the firm Biseswarlal Kishorilal was the appellants' ancestral joint family business but this contention has been negatived by both the Courts below. It his also been further found that the members of the joint family were not partners of this firm so as to make them liable under Order 21, Rule 50, Civil P. C.
(3.) On behalf of the appellants, it is contended that the decree-holder's remedy to proceed against them, as members of a joint Hindu family, is now barred as the order passed by the Court on 22nd January 1946 in Miscellaneous Case no. 147 of 1945 has become final. Nor, it is contended, can the appellants be made liable as undisclosed partners of the firm as the decree, holder did not at any time since the passing of the decree, execute the decree against the firm as such. It is, therefore, argued that the decree has become barred by limitation.;

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