Rajeshwari Prasad, J. - (1.) THIS is an execution first appeal filed by decree-holder.
(2.) THE facts of the case are that Sri Radha Soami Satsangh Sabha, Dayal Bagh, Agra, obtained a simple money-decree against the firm known as "Pawan Electric Refrigerating Company." There was another defendant in the suit which had resulted into the decree, and that was disclosed to be a limited company known as "Pawan Refrigerations Ltd." Both the defendants were sued through Sri B.N. Jain. Decree was, however, obtained against the first defendant alone. The decree was of the nature of a decree for damages on account of breach of contract. When the decree-holder put the decree in execution, one Sobha Ram filed objection purporting to be under Order 21, Rules 50 and 58 and Order 30. Rule 3 of the Code of Civil Procedure. The necessity for Sobha Ram, to file the aforesaid objection arose on account of the fact, that execution of the decree was sought against him and certain immovable properties belonging to him were attached His case was that he was not impleaded in the suit giving rise to the decree as partner of the firm, no summons was served on him, the decree, therefore, could not be executed against him. It was further alleged by him that the firm had dissolved on the date, when the cause of action had accrued and the fact of the dissolution of the firm was known to the plaintiff decree-holder Although this was so, the plaintiff did not implead Sobha Ram objector in the suit, nor get summons served on him. With regard to his objection under Order 21, Rules 50 and 58, his allegation was that no leave could be granted to the decree-holder to execute the decree against him inasmuch as no separate application for leave had been filed. It was also alleged by him that as the decree was not executable against him under Order 30, Rule 3 of the Code of Civil Procedure, no leave could be granted under Order 21, Rule 50 of the Code of Civil Procedure.
(3.) THE execution Court by its order under appeal dated 7th October 1958 came to the conclusion that the objector was entitled to succeed. As a result of it, the execution Court released the immovable properties of Sobha Ram attached under the decree.;