Law: Civil Procedure Code (V of 1908)

Section: 115

(a) Civil Procedure Code (v of 1908)--Ss. 115, 151, O. IX, r. 9 & O. XXI, r. 58-Suit for recovery of damages against a company through petitioner----Executing Court proceeded to attach some personal assets of petitioner-Petitioner before actual attachment filed application to the effect that his personal property could not be proceeded against for execution of decree against a company-Such application was dismissed in default-Petitioner instituted another similar application contending that he was not a party to suit or possessed of any property of company and that, therefore, decree passed against company could not be executed by attachment and sale of his property--Court disallowed said application on grounds (1) that due to dismissal of first application second one was not maintainable, and (2) Company was sued through petitioner and petitioner's assertion that he did not hold any assets of company was immaterial, because decree having been passed against him, he was bound by same-On basis of fact that petitioner held some fully paid ­up shares of company, it was, considered as another factor for making him liable-Held, since there was yet no attachment, proceedings under O. XXI, r. 58, C. P. C. could not be instituted-Order IX, r. 9, C. P. C. applied to suits and not to applications-Where O. IX, r. 9, C. P. C. is held to be not applicable, principle of constructive res judicata was other possible ground to render second application as incompetent-Since on first application there was no adjudication on merits, therefore, bar to reopen matter, anchored on doctrine of res judicata, also would not be attracted-Dismissal of first application in default, therefore, did not preclude petitioner to bring a fresh one ­Decision of executing Court in this behalf was erroneous and could not be upheld. (b) Civil Procedure Code (V of 1908)- -- O. XXIX, r. I & S. 151-Suit for recovery of damages against a company - Defendant having been described in plaint as "N. T. Company Ltd. through its Director Incharge Mr. M"-Company as was manifest from its name was a corporate body and thus, a legal personality and therefore, had to be such in its corporate name ­Plaint…

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