OP(C) NO.374 OF 2023

``` OP(C) NO.374 OF 2023 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 ``` ## **`OP(C) NO. 374 OF 2023`** ## **`EP 2/2018 OF SUB COURT, VADAKARA`** ## **`PETITIONER/S:`** ``` 1PARAMBATH USMAN HAJI AGED 63 YEARS RESIDING AT CRESCENT HOUSE, PARAKKADAVU AMSOM DESOM, PARAKKADAVU POST, VATAKARA TALUK., PIN - 683579 2MARAM VEETIL SAINABA AGED 53 YEARS W/O PARAMBATH KUNHAMMED KUTTY, RESIDING AT CRESCENT HOUSE, PARAKKADAVU AMSOM DESOM, PARAKKADAVU POST, VATAKARA TALUK., PIN - 683579 BY ADVS. DILEEP VARGHESE N.RAYNOLD FERNANDEZ TESMY VARGHEESE ``` ## **`RESPONDENT/S:`** ``` 1KADEEJA AGED 76 YEARS KANNANKANDY HOUSE, TRIPPRANGOTTUR AMSOM DESOM, THALASSERY TALUK, CANNANORE DISTRICT., PIN - 670693 2AYISHA AGED 46 YEARS D/O LATE K P MAYAN HAJI, AGED 46 YEARS, MOONNAGARIL HOUSE, THUVAKUNNU AMSOM DESOM, KOLAVALLUR DESOM, CANNANORE DISTRICT, PIN - 670693 3DARVESH AGED 41 YEARS S/O LATE K P MAYAN HAJI, KANNANKANDY HOUSE, TRIPPRANGOTTUR AMSOM DESOM, THALASSERY TALUK, CANNANORE DISTRICT., PIN - 670693 4ARIFA AGED 36 YEARS D/O LATE K P MAYAN HAJI, KARAYAT HOUSE, NARIPATTA AMSOM, TINUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT., PIN – 673506 ``` ``` OP(C) NO.374 OF 20232 ``` ``` 5NAJMA AGED 30 YEARS D/O LATE K P MAYAN HAJI, PARAMBATH HOUSE, VELLUR AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT., PIN – 670307 ADV.SRI.RAKESH ROSHAN ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO.374 OF 2023 ``` ``` 3 ``` ## **JUDGMENT** Challenging Ext.P7 order passed in E.A.No.130/2018 in E.A.No.17/2022 in E.P.No.2/2018 by the Court of the Subordinate Judge, Vatakara, the judgment debtors in the above execution petition have filed the original petition. The respondents are the decree holders. 2. The factual matrix, leading to Ext.P7 order, in a nutshell, are: (i) The predecessor-in-interest of the respondents – late K.P.Mayan Haji - had filed O.S.No.60/1997 before the court below against the petitioners for recovery of money. (ii) The suit was partly decreed. (iii) K.P.Mayan Haji challenged the decree before this Court by filing A.S.No. 470/1999 and the petitioners filed a cross appeal. (iv) This Court dismissed the cross appeal and allowed the appeal by permitting K.P.Mayan Haji to recover an amount of Rs.8,49,981.94/- with interest from the petitioners. ``` OP(C) NO.374 OF 20234 ``` (v) The petitioners challenged the said judgment before the Honourable Supreme Court by filing S.L.P(C) No.5121/2018. But the Special Leave Petition was dismissed by granting liberty to the petitioners to file a review petition. - (vi) Although the petitioners filed a review petition, the same was also dismissed. (vii) K.P.Mayan Haji laid the decree to execution by filing E.P.No.2/2018. (viii) The petitioners filed E.A.No.130/2018 (Ext.P2) under Section 47 of the Code of Civil Procedure (in short, ‘Code’) to dismiss the execution petition. The application was opposed by the respondents through Ext.P3 counter affidavit. (ix) The court below, by the impugned Ext.P7 order, dismissed Ext.P2 application. (x) Ext.P7 is manifestly wrong and unsustainable in law. Hence, the original petition. 3. Heard; Sri. N.Raynold Fernandez, the learned counsel appearing for the petitioners and Sri.Rakesh ``` OP(C) NO.374 OF 2023 ``` ``` 5 ``` Roshan, the learned counsel appearing for the respondents. 4. The question is, whether there is any illegality in Ext.P7 order. 5. The sheet anchor of the learned counsel appearing for the petitioners is that the suit was filed by late K.P.Mayan Haji - the erstwhile partner of a firm named ‘Rajadhani Jewellery’, which is an unregistered firm. In view of the statutory bar under Section 69 of the Partnership Act, 1932 (in short, ‘Act’), the suit was unsustainable in law and liable to be rejected at the threshold. Therefore, the decree passed by the court below and concurrently confirmed by this Court and the Honourable Supreme Court, is _non est_ and unexecutable. This crucial aspect was brushed aside by the Execution Court by the impugned order. 6. The suit was instituted by K.P.Mayan Haji for recovery of his share from Rajadhani Jewellery (in short, ‘firm’) on the strength of release-cum-retirement deed dated 04.02.1999 executed in his favour by the ``` OP(C) NO.374 OF 2023 ``` ``` 6 ``` petitioners– as the partners of the firm. 7. Admittedly, the petitioners had not raised the contention regarding the statutory bar under Section 69 of the Act, on the original and appellate stage. 8. It is now for the first time, at the belated stage of the execution proceedings that the petitioners have raised the contention regarding the bar of the suit under Section 69 of the Act. The court below has, rightly through the impugned Ext.P7 order, held that the said application is barred by the principles of resjudicata. This Court completely endorses the finding of the court below in this regard. 9. Furthermore, it is to be borne in mind that Section 69 of the Act applies only in a case where a suit is instituted for and on behalf of the firm and not otherwise. 10. In the case on hand, K.P. Mayan Haji had instituted the suit against the firm – in the status of a retired partner - for recovery of his share that was agreed to be paid to him based on the retirement deed. Thus, the contention that Section 69 of the Act is applicable to the ``` OP(C) NO.374 OF 2023 ``` ``` 7 ``` instant suit is untenable and is only liable to be rejected. 11. Coming to the second limb of the contention of the petitioners, that the court below has failed to consider the objection of the petitioners, that only a portion of the property need be sold for realising the decree debt, is not maintainable in an application filed under Section 47 of the Act, in the light of the law laid down by this Court in **Subrahmanya Bhat v. Santhosh Kumar [2010 (2) KLT 59]** . 12. Sri.Rakesh Roshan, the learned counsel for the respondents submitted that the court below, after the passing of Ext.P7 order, has directed the respondents to submit a fresh Draft Sale Proclamation. In the above conspectus, leaving open the right of the petitioners, if any, to challenge the sale proceedings, this original petition is dismissed. ## **Sd/-** ## **C.S.DIAS, JUDGE** okb/20.2.23 //True copy// P.S. to Judge ``` OP(C) NO.374 OF 20238 ``` ## **`APPENDIX OF OP(C) 374/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF E P NO.2/2018 IN O S NO.60/1997`| ||`DATED 20.12.2017`| |`Exhibit P2`|`TRUE COPY OF EA NO.130/2018 IN EP NO.2/2018`| ||`IN OS NO.60/1997 DATED OCTOBER 2018`| |`Exhibit P3`|`TRUE COPY OF THE COUNTER IN EA 130/2018 IN EP`| ||`2/2018 IN OS 60/1997 DATED 21.12.2018`| |`Exhibit P4 (a)`|`TRUE COPY OF THE COMMISSION REPORT DATED`| ||`18.12.2021`| |`Exhibit P 4 (b)`|`TRUE COPY OF THE SKETCH FILED ALONG WITH`| ||`EXHIBIT P4(A)`| |`Exhibit P5`|`TRUE COPY OF OBJECTION TO EXHIBIT P4 (A) &`| ||`(B) DATED 07.01.2022 FILED BY PETITIONER`| |`Exhibit P6`|`TRUE COPY OF EA 17/2022 IN EP 2/2018 DATED`| ||`13.01.2022`| |`Exhibit P7`|`TRUE COPY OF THE COMMON ORDER IN EA 130/2018`| ||`& EA 17/2022 IN EP 2/2018 IN OS 60/1997 DATED`| ||`15.11.2022 OF SUB COURT VATAKARA`| |`Exhibit P8`|`TRUE COPY OF THE ORDER DATED 17.11.2022 IN EP`| ||`2/2018 IN OS 60/1997 AS COPIED BY THE 1ST`| ||`PETITIONER FROM COURT RECORD OF SUB COURT`| ||`VATAKARA`|