- (1.) Cm No. 4576-CII of 2016 C.M.is allowed. Annexures R1/1 to R1/5 taken on record. CR No. 3684 of 2015(O&M) The petitioners-judgment debtors are aggrieved of the impugned order dated 7.3.2015 (Annexure P-10) whereby in an execution application bearing No. 170-8/10 the trial court on consideration of the prayer made in the application filed on behalf of the decree-holder, who is none else but a partnership firm called upon the firm to receive the amount as Jyoti Singla the other partner has not been held entitled to receive the amount on behalf of the firm as since judgment debtor has not made the payment to the decree holder, but instead the property of judgment debtor has been ordered not to be released and decree holder firm has been entitled to receive the amount from the judgment debtor and proceed with the execution.
(2.) Learned counsel for the petitioners-judgment debtors submits that the suit was filed by the partnership firm which was decreed and the judgment and decree dated 11.12.2009 has attained finality on 25.10.2010. In discharge of the legal liability Jyoti Singla the other partner had received the entire decretal amount by suffering a statement before the Court on 16.2.2013 (Annexure P-7). Now the executing court without appreciating the fact that the decree was on behalf of the firm and all acts by the partners are binding upon the firm is proceeding ahead with execution application. In case, the other partner is aggrieved, he is entitled to recover the amount from Jyoti Singla and not in the manner and mode as noticed by the trial court.
(3.) Mr. Rakesh Gupta, learned counsel appearing on behalf of respondent No. 1 submits that as per the explanation carved out in Section 19(2) of the Indian Partnership Act, 1932, the said act of Jyoti Singla, partner is not permissible in law because the decree has been passed in favour of the firm, therefore, the firm cannot be prevented from seeking vindication of its grievance. In essence, the decree cannot remain in-executable in view of the prevalent evidence.;