Execution of decree - Court passed judgment and decree against a firm - Execution thereof in respect of the property allegedly belonging to another firm, Partners of both the firms same - Order for execution of decree against the properties of other firm in the circumstances is proper

Delhi High Court

DELHI HIGH COURT

Before :- Mr. Mohd. Shamim, J.
E.A. Nos. 101 & 119 of 1991 in Execution No. 9 of 1991. D/d. 01.01.1994.

Nichimen Corporation - Petitioner
Versus
Atlantic Engineering Services & Ors. - Respondents

For the Petitioner :- Mr. B.L. Wali, Advocate.
For the Respondent :- Mr. J.R. Midha and Mr. H.L. Raina, Advocates.

JUDGMENT

Mr. Mohd. Shamim, J. - These are two objection petitions preferred by Mr. Mr.D.J.S.Sandhu and Premier Engineering Services under Order 21 Rule 58 of the Code of Civil Procedure, against the execution of the decree which was passed against defendant No. 1 vide judgment and order dated October 11, 1990 passed by Hon'ble Mr. Justice P.K.Bahri.
2. It has been urged for and on behalf of Premier Engineering Services by Mr. J.R.Midha, who appeared for and on behalf of the objector, that the judgment and decree in the instant case was passed against defendant No. 1 i.e.M/s. Atlantic Engineering Services. The objector herein are altogether a different entity and have got absolutely nothing to do with M/s. Atlantic Engineering Services. The objector are a separate firm and hence, in no way connected with M/s. Atlantic Engineering Services. Thus, the decree passed against the above said firm cannot be executed against the present objector. According to the learned Counsel, Mr. Midha, the execution petition is thus liable to be dismissed.
3. Learned Counsel for judgment debtor No. 3/objector. Mr. Raina, on the other hand, has contended that the decree in the instant case was passed against defendant No. 1 and it is being sought to be executed against the applicant i.e. the objector Mr. Mr.D.J.S.Sandhu as he had been a partner of the defendant No. 1 firm. No decree was passed against the applicant who is defendant No. 3 in Suit No. 1977/88. The decree was passed against defendant No. 1 primarily on the ground that the defendant No. 1 failed to file the written statement. Hence, the suit was decreed under Order 8 Rule 10 of the Code of Civil Procedure. The defendant No. 3 filed his written statement in the above suit and he is very much contesting the said suit. Thus, no such decree was passed against the applicant.
4. The decree in the instant case is being sought to be executed by way of attachment of the goods lying at the premises No. S-38, Greater Kailash I, New Delhi, and by way of attachment of plot located at S-38, Greater Kailash I, New Delhi, as being the properties belonging to defendant No. 3 i.e. the applicant. The said properties do not belong to the applicant. In fact, the applicant has got no connection, whatsoever, with the said properties. Hence, the said properties cannot be attached. The execution petition is thus liable to be dismissed.
5. Learned Counsel for the decree-holder, on the other hand, has contended that Atlantic Engineering Services i.e. defendant No. 1 was sued in Suit No. 1977/88 through their Managing Partner Shri Mr.D.J.S.Sandhu i.e. defendant No. 3 in the said suit. The above said firm are also carrying on business under the name and style of M/s. Premier Engineering Services. 104,G-4, Raj Tower, Alakhnanda Shopping Centre, Kalkaji. New Delhi. The business is the same and the same is being carried on under two different names. Thus, it is one and the same entity. They were sued as such under the two names. It was so specifically mentioned in the array of the parties. No objection was taken during the course of the proceedings in Suit No. 1977/88 that Premier Engineering Services has been wrongly arrayed as defendant No. 1 and it has got absolutely nothing to do with Atlantic Engineering Services. Thus, now it is too late in the day to raise the said objection. Shri Mr.D.J.S.Sandhu, is admittedly the Managing Partner of Atlantic Engineering Services. He has been shown as such in the array of parties and the suit against the defendant No. 1 has been instituted through Shri Mr.D.J.S.Sandhu. Hence, the decree, alluded to above, can be executed against defendant No. 3, being the partner of defendant No. 1 -
6. I have heard the learned Counsel for both the parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thought thereto.
7. The question which is precariously perched on the tip of the tongue in the instant case is as to whether Premier Engineering Services and Atlantic Engineering Services are two separate firms and as such, two separate entities and hence the decree passed against defendant No. 1 cannot be executed against Premier Engineering Services? Curiously enough, the above objection which has been raised in the instant case during the course of the execution petition was never raised during the hearing of Suit No. 1977/88 which is still pending decision. This is all the more so, inasmuch as the Court directed the defendant No. 1 vide order dated September 30,1988 passed by Hon'ble Mr. Justice B.N. Kirpal to disclose the particulars of the other partners of the defendant firm by the next date of hearing. The defendant No. 1 for the best reasons known to them did not come forward with the particulars of the partners of the firm as directed by the Court. The decree-holder having seen no alternative thereafter moved an application i.e. I.A. No. 4334/90 for issue of a direction to the defendant No. 1 to disclose the particulars of the partners of the defendant firm. The said application came up for hearing on December 12,1990 and was dismissed as being infructuous inasmuch as the direction in question had already been issued. Thus, it can be safely concluded from above, that defendant No. 1 were directed as far back as on September 30,1988 to give the full particulars of the partners of M/s. Atlantic Engineering Services, but for the best reasons known to them they neither filed the particulars of the partners of the said firm nor ever raised even a tiny finger of protest that M/s. Premier Engineering Services was not the same as Atlantic Engineering Services and was altogether a different firm. Thus, the defendant No. 1 would be deemed to have admitted and acquiesced therein. It is now too late in the day for them to take this objection to delay and defeat the decree which has been duly passed against them.
8. The next contention raised by the learned Counsel for the objector i.e. M/s. Premier Engineering Services is that the decree can be executed against the properties of the firm only. The learned Counsel in this connection has led me through Order 21 Rules 49 & 50 of the Code of Civil Procedure. There is no dispute with the said proposition of law. It is true that the decree can be executed against the property of the said firm and against the partners of the firm. However, this is exactly what is being done in the instant case. Thus, the learned Counsel should have no quarrel with the decree-holder on the said score.
9. This brings me to the case of the objector i.e. Shri Mr.D.J.S. Sandhu. A close scrutiny of the memo of parties in Suit No. 1977/88 reveals that the said suit has been instituted against defendant No. 1 through their Managing Partner known as Mr. D. J. S. Sandhu. Defendant No. 3 has nowhere denied the said fact in his objection that he is not the Managing Partner of the said firm. The sheet anchor of the defense version as set up in his objection petition is that no decree was passed against him inasmuch as he is defendant No. 3. However, while raising the said contention Mr. Raina is oblivious of the fact that a decree can be executed not only against the property of the firm but against the partner also. I have already observed above that defendant No. 3 has nowhere denied that he is not the partner of M/s. Atlantic Engineering Services. Thus, the decree can be executed against him as well.
10. The next limb of the argument of the learned Counsel for the objector that the properties i.e. the goods lying at premises No. S-38, Greater Kailash I, New Delhi, which are sought to be attached during the execution of the present petition and the plot bearing No. S-38, Greater Kailash I, New Delhi, do not belong to the defendant No. 3. Hence, the same cannot be attached in the present execution proceedings. The argument of the learned Counsel, I feel, is without any merit. If the contention of the learned Counsel is to be accepted that the said plot and the goods lying therein are not the properties of defendant No. 3, in that eventuality, the defendant No. 3 should have no grievance on the said score. Admittedly, according to him, the above said properties are not his assets, then why he should feel worried if they are being attached.
11. In the above circumstances, I do not see any force in the above said objection petitions and the same are hereby dismissed with costs.
Ex. No. 9/91
Put upon February 8, 1994 for further proceedings.

Objection petitions/applications dismissed.
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