Rajendra Bhikamchand Jain And Anr vs Kavishanlal Gangashya Agarwal ...
2023 Latest Caselaw 9666 Bom

2023:BHC-AS:27260
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                    SA Pathan

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION

                                        WRIT PETITION NO.9008 OF 2023

                                                    WITH
                                        WRIT PETITION NO.7265 OF 2023

                    Rajendra Bhikamchand Jain & Anr                ... Petitioners
                               V/s.
                    Kavishanlal Gangashya Agarwal & Ors            ... Respondents



                    Mr. M. A. Adenwala, for the Petitioner.
                    Mr. Girish Agrawal a/w Mr. Darpan Jain i/by Mr.
                    Anand Kumar Singh, for Respondent No.1 in Writ
                    Petition No.9008/2023.
                    Mr. Ranjit Bhonsale a/w Mr .Chetan Shah & Mr.
                    Darpan Jain i/by Mr. Anand Kumar Singh, for
                    Respondent No.1 in Writ Petition No.7265/2023.
                    Mr. Satyajeet P. Dighe, for Respondent No.5 in both the
                    Writ Petitions.
                    Mr. Bhikamchand Jain i/by the Erstwhile partners,
                    Respondent No.3.



                                                 CORAM       : AMIT BORKAR, J.

                                                 DATED       : SEPTEMBER 14, 2023
                    P.C.:

1. Both the writ petitions are filed by the persons who are added as judgment debtors to execution petition and restraining petitioner No.2 from alienating or creating third party rights in respect of 50% share of suit flat.

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2. The respondents filed execution petition for executing consent decree dated 27 November 2012 in L. C. Suit No.1505 of 2009.

3. In the earlier round of litigation the petitioner No.1 had filed an application for modification of consent terms. The said application was allowed by the Executing Court.

4. The decree holder has challenged the order of allowing modification by way of writ petition lodging No.15626 of 2021. The writ petition was filed by the present petition No.1. The petitioner No.1 also challenged the order as part of the relief was not granted by the Court.

5. This Court in Civil Writ Petition No.2915 of 2021 along with other connected group writ petitions has recorded following findings:

(i) Consent terms were forwarded by the petitioners to all partners of the firm.

(ii) Bhikamchand Jain has given a clear admission that he signed the terms of consent on behalf of the partnership firm and, therefore, no partner can now stake a claim that it does not bind the partnership firm.

(iii) In the wake of the aforesaid, Rajendra Jain cannot be absolved of his responsibility and, particularly,when it is the choice of the decree-holder to execute a decree against a firm and in absence of any property of the partnership firm, against any person who has appeared in the suit and who has admitted on

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pleadings that he is a partner.

6. It appears that petitioner No.1 has filed an application for intervention and raising objections under Section 47 r/w Order 23(3) of the Code of Civil Procedure, 1908. The Executing Court by impugned orders permitted decree holder to add petitioner No.1 as judgment debtor No.5 and petitioner No.2 as judgment debtor No.6 to the execution petition. The judgment debtor being transfree pendente lite was restrained from creating third party rights in respect of 50% of share gifted to him. The said order is subject matter of present petition.

7. According to learned Advocate for the petitioners, petitioners were not parties to the suit and, therefore, could not have been added as judgment debtors. He submitted that the procedure under Order 21, Rule 50 of the Code of Civil Procedure, 1908 need to be followed and, therefore, petitioners could not have been added as judgment debtors. According to him, petitioner No.1 has retired in the year 2014 and, therefore, petitioner No.1 could not have been added as judgment debtor. According to him, procedure under Order 21, Rule 50 of the Code of Civil Procedure, 1908 is not followed by the Executing Court.

8. Per contra, learned Advocate for the decree holders contended that all such objections were raised in the earlier round of litigation before this Court. This Court after considering all objections, had repealed it. It is, therefore, submitted that the impugned order calls for, no interference under Article 227 of the Constitution of India.

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9. I have heard learned Advocate for the petitioner and Advocate for the respondents.

10. On perusal of the judgment of this Court in Writ Petition No.2915 of 2021 along with other connected writ petitions, it appears that this Court had recorded a finding that the decree passed against defendant No.3 (partnership firm) is binding on all partners.

11. This Court also recorded a finding that the consent terms were sent by the petitioner No.1. This Court also recorded a finding that the petitioner No.1 cannot be absolved of his responsibility and, it is the choice of decree-holder to execute a decree against a firm and in the absence of any property of the partnership firm, decree can be executed against any person who has admitted as a partner.

12. The effect of the impugned order is to add petitioners as judgment-debtor nothing more than that is done by the impugned order.

13. The petitioner No.2 being a person to whom judgment- debtor gifted suit flat is not entitled to any right to contest litigation as it is well settled that such person is bound by the decree and cannot be claim any independent right.

14. The position of law in this regard has been laid down by the Apex Court in the case of Usha Sinha vs Dina Ram & Ors reported in (2008) 7 SCC 144, therefore, in my opinion, the order passed by the Trial Court is justified, hence no interference under Article 227 of the Constitution of India.

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15. Both the writ petitions are, therefore, dismissed. No costs.

(AMIT BORKAR, J.)