P L D 1972 Karachi 327 (PLP)

against the partnership or against the partners individually as laid down by sub‑rules (1) and (2). According to sub‑rule (1) the execution of the decree can be sought against (1) a person who appears as a partner under Order XXX, rules 6 and 7, (2) a person who has admitted In the pleading that he is a partner, (3) at person adjudged to be a partner by a Court passing the decree, and (4) a person who was Individually served as partner under Order XXX. rule 3 and failed to appear. So far sub‑rule (2) Is con cerned a decree obtained against a firm can be executed against~ 4 person as a partner if he was not Impleaded as defendant in the q suit or not served in the suit and further not covered by sub‑! ~e ~e(t1) and where such a person disputes the liability it mayR determined under sub‑rula‑ (2) In the execution proceedings. The bare perusal of this rule shows that the case of Azizur Rehman ]s covered by wbrulo(1). He had appeared in order to contest the snit and the permission was granted to him but he failed to avail of that opportunity as he did not furnish security and, therefore, the claim of the decree‑holder was deem ed to have been admitted. It further follows that this amounted t the rejection of his plea. He is, therefore, debarred from re‑agitating the plea. The sub‑rule (2) could be attracted only In case he had not been served with the suit summon or had not otherwise appeared to contest the suit, and in that case, i would have been open to him to raise the plea and get it deter mined in these proceedings. There is no force in the contention that the plea was not investigated into. Decision in explicit terms is not necessary. It is enough if an adjudication on the matter Is necessarily involved in the decision in the suit. It cannot be said that the decision on the question whether the judgment‑debtor was a partner or not was not necessary. In order to render him liable for the claim in the suit it was necessarily to be decided that he was one of the partners in the firm which was sued. It is Immaterial whether the decree is ex parte or passed after contest. The principle is equally applicable In both the cases. The learned counsel placed reliance upon three authorities but none of these authorities are of any avail to the judgments debtor and they, on the contrary, support the view which I have taken. The first authotity is in the case of Abdus Salam and others v. Hafiz Pirbux & Co. and others (1). The relevant portion reads as under t "The liability of the partners of a firm can be determined both In the suit itself and in the execution proceedings. Under Order XXX, rule 8, C. P. C. the right of a partner to appear under protest and to deny that he is a partner is fully reoog‑i nised. In such cases two courses are open to the Court. It can determine his liability fn the suit itself or leave the question to be tried and determined under Order XXI, rule 50, C. P. C. at the time of the execution of the decree against the firm". There is nothing In the observation to support the contention. The courses which are referrred to are open to the Court and not to the party. In order to defeat the claim, the several grounds of attack available to a party must be taken in the suit. In case the party chooses not to raise a particular ground or subsequently abandons the ground previously taken, it cannot be permitted to raise it In the subsequent proceedings. It is, however, open to the Court to determine the liability of the partner in the suli itself or leave it to be tried and determined to the execution proceedings. This is what has been laid down by the aforesaid observation. It does not lay down as contended by the learned counsel that a question though decided or deemed to have been decided in the suit Itself can again be re‑agitated in the execution proceedings. The question having been once determined or~ deemed to have been determined in the suit itself cannot be' ellowed to be raised In the execution proceedings. The ‑ (1) P L D 1962 Kar. 422 opportunity to substantiate the plea was lost to the judgment debtor when he committed the breach of the condition and the) decree was passed against him. The second authority is in the case of Cooverf Varjang anal another v. Cooverbaf Nagsey Champsey (1). In that case the execution application was filed by the defendant for costs against the partner of the plaintiff's firm. So it was an appli cation under Order XXI, rule 50, sub‑rule (2), and, therefore, the case was not covered by sub‑rule (i ). It was observed as under t "The present application is for leave under Order XXI, r. 50, sub‑rule (2) which provides that where the decree‑holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub‑rule (1), clauses (b) and (c), as being a partner in a firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined." The third authority is in the case of Gajendra Narain Singh v. Johrimal Prahlad Rai (2) which lays down that relying upon sub‑clauses (b) and (c) of sub‑rule (1) of Order XXI, rule, 50, C. P. C. a plaintiff who has obtained a decree against a firm may execute it against any person who has been individually seeved with the summons as partner and has failed to appear and also against any person who has appeared in his own name under rule 6 or 7 of Order XXX, C. P. C. It was further laid down that an application by a plaintiff for leave to execute the decree against a person on the footing that he was the person other than the person referred to in clauses (b) and (c) of sub‑rule (1) of Order XXI of rule 50 was found to be under incorrect appreciation of law and, therefore, the plaintiff's right under Order XXI, rule 50 (1) (b) was not lost and, therefore, he could abandon his application for leave and execute the decree. Thus even this authority operates against the contention raised by the learned counsel. In the result, the objections are dismissed and it is ordered that the writ of attachment as prayed be issued. A. B. Writ of attachment Issue d. (1) A I 12 1940 Bom. 330 (2) A I R 1964 S C 581