P L D 1967 Karachi 240 (PLP)

Ihsanul Haq for the Judgment‑debtors. Date of hearing: 11th October 1965. Plaintiff/decree‑holder (Messrs Ralli Brothers Ltd.) had obtained a money decree against the defendant/judgment‑debtor (Messrs Shaikh Muhammad Din Abdul Rehman) on 1‑10‑62 and thereafter it has not been able to recover any sum towards the decretal amount. Present execution application was filed on 11‑2‑65 for recovery of a total sum of Rs. 1,32,307.37 under Order XXI, rules 43 and 64, C. P. C. for attachment and sale of furniture and, other household articles lying at the residence of Mr. Azizur Rehman, one of the partners in the judgment‑debtor's firm under Order XXI, rule 50, C. P. C.

2. Several objections have been raised on behalf of Azizur Rehman and I will deal these objections in seriatum.

3. First objection is that this execution application was not maintainable under Order XXI, rule 50, C. P. C. as the partners in the judgment‑debtor's firm were neither "arrayed as a party nor given a chance to defend. This objection, factually, does not appear to be correct I have gone through R. & P. of this suit. Plaint was accompanied by application under Order XXX, rule 3, C. P. C. and it mentions the names of 4 partners including Azizur Rehman and a prayer had been made that summons and process be served on the partners, manager or any other person Incharge of the firm at the time of service. Thereafter this Azizur Rehman appeared in Court and filed an application under Order XXXVII, rule 3, C. P. C. Requisite permission was granted conditionally to him on furnishing security, LPA filed against this order was dismissed summarily. He has filed his affidavit dated 27‑2‑62 in support of his request under Order XXXVII, rule 3, C. P. C. An other affidavit was filed by him on the wane day opposing the request made by the plaintiff‑decree‑holder for attachment before judgment. He has admitted in these affidavits to be cane of the partners in the judgment‑debtor's firm. Third affidavit was filed by him on the same day, viz. 27‑2‑

62. It is also in support of his request under Order XXXVII, rule

3. He had filed his affidavit by way of rejoinder on 16‑3‑62 and therein he has specifically admit ted That he is one of the partners in the judgment‑debtor's firm. Another affidavit filed by him by way of rejoinder is also dated 16‑3‑62 and is also to the same effect. Last affidavit filed by him is dated 25-4‑

62. All these facts clearly prove that Azizur Rehman had appeared in Court in pursuance of summons served on his firm and admitted to be one of its partners. For all these reasons I reject this objection.

4. Second objection raised by him is that factory belonging to the judgment‑debtor's firm has been equitably mortgaged with the decree‑holder "unless the decree is satisfied the sale of the same, the question of proceeding against the persons does not arise". There appears very little force in this objection. Suit was filed under Order XXXVII and not under Order XXXIV, C. P. C and hence the decree passed by this Court is not against the mort gaged property. I therefore dismiss this Abjection also.

5. Third objection relates to the service of summons. Stand taken by him is that it was the manager of the judgment‑debtor's firm who was served and further that no partner was actually served. He has not examined the manager of the firm. Order XXI, rule 50 deals with execution of decree. It provides that where a decree is passed against a f3rtli it may be executed (1) against any property of the partnership, (2) against any person who has appeared under Rule 6 or Rule 7 of Order XXX or who has admitted on the pleading that he is, or who has been adjudged to be, a partner; (3) against any person who has been individually served as a partner with a summons and failed to appear. In this particular case it was urged before me that Azizur Rehman had appeared in Court and had admitted to be a partner in the judgment‑debtor's firm. For this reason, this objection also fails.

6. As all the objections raised on behalf of judgment‑debtor have been dismissed I allow the execution application and direct that warrant of attachment to issue as prayed. K. B. A. Application accepted.