S.H.Sheth, J.:-
(1) Mr. P. V. Nanavaty who appears for judgment debtors nos. 3 and 5 has argued the cases of these two judgment debtors on different lines. So far as opponent no. 5 is concerned she was neither a party to the suit nor to the decree which the city civil court at ahmedabad passed however after the decree was transferred to the civil court at narol and the decree holder filed the darkhast he made an application ex. 6 for joining opponent no. 5 (kankaben) as a party. The executing court ordered her to be joined as a party to the darkhast and issued interim injunction against her also.
(2) Mr. Nanavaty has contended before me that the transferee court has no jurisdiction to join a party to the execution proceedings. In that behalf he has relied upon sec. 42 (4) of the code of civil procedure. Sub - secs. (2) (3) and (4) have been newly added to sec. 42. Sub - sec. (1) provides that the court which executes a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself it further provides that all persons disobeying or obstructing the execution of the decree shall be punishable by such court it the same manner as if it had passed the decree. Sub - sec (2) without prejudice to the generality of the provisions of sub - sec. (1) expressly specifies which powers the transferee court shall have while executing the decree transferred to it for execution. Sub - sec. (3) provides that the transferee court shall send a copy of any order made by it under sub - sec. (2) to the court which passed the decree. Sub - sec. (4) is material for the purpose of the present case. It provides as follows:
Nothing in this section shall be deemed to confer on the court to which a decree is sent for execution any of the following powers namely : (a) power to order execution at the instance of the transferee of the decree; (b) in the case of a decree passed against a firm power to grant leave to execute such decree against any person other than such a person as is referred to in clause (b) or clause (c) of sub - rule (1) of rule 50 of order xxi.
It is therefore clear that the transferee court does not have power in respect of matters specified in sub - sec. (4) of sec. 42. Mr. Nanavaty has relied upon clause (b) which expressly provides that when a decree is passed against a firm the transferee court shall have no power to grant leave to execute such decree against any person except such person who is referred to in clause (b) or clause (c) of sub - rule (1) of rule 50 of order xxi. Mr. Nanavaty has then invited my attention to order xxi rule 50 and argued that opponent no. 5 does not fall under the exception made under clause (b) of sub - sec. (4) of sec. 42 and that therefore the decree under execution cannot be executed against her. In other words she could not have been made a party to the darkhast. Clauses (b) and (c) of rule 50 (1) of order xxi provide as follows:
50 (1). Where a decree has been passed against a firm execution may be granted_ (a). (b) against any person who has appeared in his own name under rule 6 or rule 7 of order xxx or who has admitted on the pleadings that he is or who has been adjudged to be a partner; (c) against any person who has been individually served as a partner with a summons and has failed to appear :
It is not in dispute before me that opponent no. 5 kantaben had not appeared in her own name under rule 6 or rule 7 of order xxx nor had she admitted that she was adjudged to be a partner. It is also not in dispute that opponent no. 5 kantaben had not been individually served as a partner with the summons. The question of her having failed to appear in the suit therefore did not arise. Proviso to sub - rule. (1) reads as follows : -
"provided that nothing in this sub - rule shall be deemed to limit or otherwise affect the provisions of sec. 30 of the indian partnership act 1932 (9 of 1932)."
Sec. 30 of the indian partnership act 1932 deals with the cases of minor partners. It has no application to the instant case. It is therefore clear that the executing court which is the transferee court could not have joined opponent no. 5 as a party to the execution proceedings because she had dot appeared in the suit nor had be made any admission that she was adjudged to be a partner nor was she served individually with the notice of the suit. The executing court therefore acted without jurisdiction in joining her as a party to darkhast proceedings. Obviously therefore all further orders which the executing court made against her were without jurisdiction null and void. In that view of the matter the interim injunction in so far as it was issued against opponent no. 5 kantaben was without jurisdiction and could not have been issued. She was therefore not bound to obey it. The executing court was therefore in error in making the impugned order of detention against her. It is liable to be set aside.
Appeal partly allowed.