LODHA, J - (1.) THIS is a decree-holder's second appeal arising out of an application filed under O. 21, r. 50 (2) Civil P. C. for grant of leave to cause the decree to be executed against Phoolchand, one of the partners of the judgment-debtor-Firm Jiwanlal Kailashchand. .
(2.) THE appellant Firm Motilal Lalchand obtained an ex parte decree for Rs. 2899/- on 4-2-1950 from the Court of Sub-Judge, First Class, Ajmer against the firm M/s Jiwanlal Kailashchand. On 10. 4. 1950 Phoolchand, Jiwanlal Kailashchand, partners of the defendants' firm Jiwanlal Kailashchand applied for setting aside the ex parte decree but this application was dismissed on 17-10-1952. THE order dismissing the application was upheld right upto the Court of Judicial Commissioner, Ajmer by the letter's order dated 28. 1. 1954. On 29-6-1954 the decree-holder applied for execution of the decree to the Court of Sub-Judge, First Glass, Ajmer praying that the decree be transferred to the Court of Civil Judge, Muzaffarnagar for execution. This prayer was allowed and the decree was sent to the Court of Civil Judge, Muzaffarnagar for execution with a certificate of transfer. THEreafter on 23 9-1954 the decree-holder filed execution application in the Transferee Court praying that the decretal amount may be ordered to be recovered by attachment and sale of the property of Phoolchand, one of the partners of the judgment-debtor firm. On this application the property of Phoolchand was attached, whereupon Phoolchand filed objection that he was not personally liable for the decree passed against the firm Jiwanlal Kailashchand and, therefore, his property could not be attached and sold in execution of the decree. This objection was allowed by the Additional Civil Judge, Muzaffarnagar by his order dated 4. 12. 1957. It further appears that in consequence of the aforesaid order by the Muzaffarnagar Court the execution application pending before it was also dismissed. THEreafter the decree-holder, filed an application under O. 21, r. 50 (2) C. P. C. on 31-3-1958 in the Court of Civil Judge, Ajmer praying that leave may be granted to the decree-holder to cause the decree to be executed against Phoolchand Baijnath, partners of the judgment-debtor-Firm Jiwanlal Kailashchand, both of whom stoutly opposed the application by filing separate replies dated 10-7-1958. THE main point taken by them was that the application filed by the decree-holder was barred by time. The learned Civil Judge, Ajmer by his order dated 30-9 1959 held that the previous execution application filed by the decree-holder on 23-9-1954 in the Court of Civil Judge, Muzaffarnagar was not in accordance with law and could not save limitation. In this view of the matter he held that the application under O. 21, R. 50 (2) C. P. C was barred by time and not maintainable. However, in the operative part of his judgment he held that it was satisfactorily proved that Phoolchand and Baijnath were partners of the judgment-debtor firm. Aggrieved by this order the decree-holder filed appeal in the Court of District Judge, Ajmer which was also dismissed by the judgment dated 14-2-1969,. Consequently, the decree-holder has come in second appeal to this Court. The only question for decision in this appeal is whether the courts below were right in holding that the execution application dated 23-9-1954 filed in the Court of Civil Judge, Muzaffarnagar and disposed of on 4-12-1957 was not in accordance with law? It is admitted by the learned counsel for the respondents that if this point is decided in favour of the appellant, the application under O. 21, r. 50 (2) C. P. C. filed on 31-3-1958 would be maintainable. It is submitted that the Muzaffarnagar Court was competent to grant leave under O. 21, r. 50 (2) C. P. C. and the mere fact that the decree-holder had not moved a separate application under O 21, r. 50 (2) C. P. C. did not make the execution applcation dated 23-9-1954 as being not in accordance with law. On the other hand learned counsel for the respondents has argued that there is no executable decree against Phoolchand and unless leave had been obtained under O. 21, r. 50 (2) C. P. C. no execution could be levied against Phoolchand at all. It has also been argued that leave under O. 21, r. 50 (2) C. P. C. could be granted only by the original executing Court and not by the transferee court and consequently it was not possible for Muzaffarnagar Court to grant leave to cause the decree to be executed against the personal property of Phoolchand. He has also submitted that the order of the Additional Civil Judge, Muzaffarnagar dated 4-12-1951 operated as res judicata in the present proceedings. In order to determine whether the execution application dated 23 9-1954 was in accordance with law, it has to be seen whether the Muzaffarnagar Court before which it was made was competent to act upon it or in other words whether the transferee court could have granted leave to the decree-holder to cause the decree to be executed against Phoolchand as prayed in the application itself. There seems to be difference of opinion on this point. The Lahore, and Allahabad High courts have held that a transferee court is competent to grant leave under O. 21 r. 50 (2) C. P. C. Sital Prasad vs. Clements Robson & Co. (l), Sanwaldas vs. Collector of Etah (2), J. K. Jute Mills Co. Ltd. vs. Birdhichand (3), Umashankar vs. Kanodia Bros (4), and B. S. Satsangh Sabha v. P. N. Refrigerating Co (5 ). It will not be irrelevant here to state that O. 21, r. 50 (2) C. P. C. has been amended by the Allahabad High Court on 1. 6. 1957, and in sub rule (2) the words "or to which the decree is transferred for execution. " between the words "which passed the decree" and the words"for leave" have been inserted. Learned counsel for the respondents submits that it was in view of this amendment that the Allahabad High Court took the above-mentioned view. It may be pointed out that in the present case the execution application dated 23-9-1954 was disposed of by the Civil Judge, Muzaffarnagar on 4-12-1957 more than six months after the aforesaid amendment. The execution application in question was pending at the time when the aforesaid amendment was made by the Allahabad High Court and the Muzaffarnagar Court, therefore, could apply it to the execution application pending before it. But apart from that even in the earlier cases Sital Prasad vs. Clements Robson &co. (l) and Sanwaldas vs. Collector of Etah (2) the same view had been taken by the Allahabad High Court on the unamended wordings of O. 21, r. 50 (2) C. P. C. The Lahore High Court also took the same view in Bombay Co, vs. Kaban Singh (6 ). A contrary view was undoubtedly taken in Pulin Behari vs. Firm Iswar Chandra (7), Jagannath Jugal vs. Chimanlal Chowdhuri (8), Kaluram vs. Sheonand Rai (9) and Pottiswami vs. Sulaiman (10 ). There is no decided case on the point of our own Court. However, for the decision of the case on hand it is not necessary to examine the controversy whether the transferee court is competent to grant leave under O. 21, r. 50 (2) C. P. C. as so far as the Muzaffarnagar Court was concerned which is the tranferee court in the present case, according to the view consistently taken by the Allahabad High Court by which the Muzaffarnagar Court was bound, the Muzaffarnagar Court was competent to grant the leave. In these circumstances I have come to the conclusion that by making a prayer that the decree may be executed against Phoolchand, one of the partners of the judgment-debtor F'irm, the decree holder had not applied to the Court to do some thing, which the Court was incompetent to do. It is true that the decree holder had not made a separate application for grant of leave u/o. 21, r. 50 (2) CPC to the Muzaffarnagar Court and placed sole reliance on O. 21, r. 50 (1) CPC for proceeding against Phoolchand personally. It seems, however, to be well established that a separate application for grant of leave under O. 21, R. 50 (2) C. P. C. is not necessary. Even in the case relied upon by the respondent's counsel Pulin Behari vs. Firm Tswar (7) it was held that it is not necessary that leave under O. 21, R. 50 (2) CPC should be asked in a separate petition before filing an application for execution. It was held that it is permissible to make one application combining both the prayers and it is not even required to ask for leave separately as the application for execution against a particular person, necessarily implies such a prayer, In fact this proposition was not challenged by the learned counsel for the respondents. Consequently the mere fact that the decree-holder had not made a separate application for grant of leave under O. 21, R. 50 (2) CPC to proceed against Phoolchand would not detract from the application for execution being in accordance with law. The learned District Judge, Ajmer has held that the decree-holder was not entitled to ask for the relief made in the execution application dated 23-9-1954 as the Court had no power to grant such relief. In support of this view, he has relied upon Isharchand vs. Rawat (11), Firm Joharmal vs. Bindeshwari Prasad (12) and Sitaram vs. Madho Prasad (13 ). All these cases are, however, distinguishable inasmuch as it was held in them that it was not competent for the Court before which the execution application had been made to grant the relief contained therein. As I have already held above, in the present case the Muzaffarnagar Court was competent to grant the prayer contained in the Execution Application dated 23. 9-1954, and the mere fact that the decree holder failed to make a separate application under O. 21, r. 50 (2) C. P. C. for obtaining leave in respect of that prayer or that the Court did not actually exercise its powers under the aforesaid provision to grant such leave would not make the application incompetent or not in accordance with law.
(3.) THE last objection raised by the learned counsel for the respondent that the order of the Muzaffarnagar Court dated 4 12-1957 operated as res judicata in the present proceedings is also devoid of substance. It may be observed that all that the Muzaffarnagar Court decided was that the decree-holders could not proceed against Phoolchand objector personally under 0,21, r. 50 (1) CPC and that the case did not fall under Cl. (c) of O. 21, r. 50 (1) C. P. C. It has nowhere decided that it was incompetent to grant leave under O. 21, r. 50 (2) C. P. C. to cause the decree to be executed against Phoolchand as partner of the judgment-debtor firm though it has observed that "the case is not covered by O. 21, r. 50 (2) CPC. As the decree-holders do not seek leave to proceed against Phoolchand and that no application has been made to the Court for permission being granted to proceed against him as partner of the judgment debtor firm" This observation, however, does not mean that the Court had decided that it was incompetent to grant leave to cause the decree to be executed against Phoolchand. I, therefore, fail to see how the order of the Muzaffarnagar Court dated 4-12-1957 can be used as a bar against the maintainability of the present application dated 31. 3. 1958 on the principle of res judicata? On a careful examination of the facts and the law bearing on the points involved in the case I find that the Courts below were in error in holding that the application dated 31. 3. 1958 made under O. 21. R. 50 (2) C. P. C. was barred by limitation. The contention that such an application should have been made within 3 years of the decree itself was repelled by the courts below and has not been rightly pressed before me. No other point was argued by either of the parties. The result is that I allow this appeal, set aside the judgments of both the courts below and hold that the executing court was not correct in dismissing the application under O. 21, r. 60 (2) C. P. C. dated 31-3-58 as barred by limitation and not being maintainable and send the case back to the Civil Judge, Ajmer for decision of the application on merits. In the circumstances of the case, the parties are left to bear their own costs. Learned counsel for the respondents prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is refused. . ;