KULDIP THAKUR Vs. SHEOMANGAL PRASAD THAKUR

JUDGEMENT

(1.) This appeal by Judgment-debtor 1, arises out of his objection under Section 47, Civil P. C., on the ground, inter alia, that the decree under execution is a nullity, and, therefore, it could not be executed against him.

(2.) This objection was based on the following facts: The decree-holders were partners of a firm. On the basis of a chitha, executed by the present appellant, on behalf of the defendants' firm, in respect of a certain transaction, the defendants were sued by the decree-holders for recovery of a certain amount of money advanced by them to the appellant's firm for supply of coal, which it did not supply. The suit was contested by defendants 4 and 5 only. The present judgment-debtor, who was defendant 1, did not appear and contest the suit, nor did he file any written statement. He was, however, examined as a witness, and he supported the plaintiff's claim, and admitted to have executed the chitha, which was the basis of the suit. The plea taken by defendants 4 and 5 was that the suit was not maintainable, because of non-registration of the plaintiff's firm, and, therefore, Section 69(2), Partnership Act was a bar to the suit. The trial Court overruled this objection, and decreed the suit against all the defendants, including the present appellant. On appeal, by defendants 4 and 5 only, the decree, however, as against them was set aside, as the appellate Court held that the suit was not maintainable, but the decree against the rest,, including the appellant was affirmed. There was thereafter no further appeal by either the decree-holders, or by the present appellant. The decree-holders then put, the decree into execution against the present appellant, and two others, who were defendants 1 to 3.

(3.) The objection of the appellant was that as it had been found by the appellate Court, in the appeal by defendants 4 and 5, that the suit was not maintainable for non-registration of the firm of the plaintiff, and, therefore, no decree could be passed against defendants 4 and 5, no decree could be passed against the other defendants also; and as such the decree passed against the appellant was a nullity. It was contended that when the suit had been held to be not maintainable, it must be deemed to be not maintainable against this appellant also, although he did not appeal against the decree to the Court of appeal below, nor even the appellate Court itself reversed the decree as against the present appellant, which it could do, and should have done, under Order 41. Rule 33. Civil P. C. It was, therefore, urged that the suit being not maintainable, no decree could have been passed against the appellant, and as such the decree was void and in-executable.