Bank account belonged to Late Abdul Kagzi

Mi lords, the judgment debtor through this application is mainly

contending one sole contention which is:

That since the AL paper House was a Sole Proprietorship

Firm, therefore it does not have any legal existence of its own,
thus cannot be sued in its own name.

Relying on this they are drawing further contentions that:

- The judgment is a nullity

- The notices were issued with incorrect name and
designation
- The execution against sole proprietor is like execution
against a dead person since proprietorship firm and sole
proprietor are one and same entity.
- They made a ficticious (made up in imagination) person
party to the case

Mi lords there are various judicial precedents where it has been

held that sole proprietorship doesn’t have a legal existence of its
own and is a shadow of sole proprietor and can sue and be sued in
its own name. I have mentioned 2 supreme court judgments citing
the same, one being very recent from 2021, i.e., Amway India.

The same judgments also go on to hold that “in the event of

death of the proprietor of a proprietary concern, it is the
legal representatives of the proprietor who alone can sue or
be sued in respect of dealings of the proprietary business.

Relevant laws concerning same are:

 Order 30 Rule 10: Suit against any person carrying on

business in name other than his own
 Section 2(11): definition Legal Representative
 Section 50 CPC: Legal Representatives

In Ashok Transport Agency v. Awadesh Kumar. The Supreme

Court particularly held that legal representatives of AC Basu could
be sued with regard to any cause of action arising against AC
Basu, in connection with the proprietary business.

This is the sole answer required and therefore not wanting to

waste time of this court, I do not wish to prolong my submission
unless Mi lords have any doubts regarding anything.

Factual arguments

All communication in business used to take place with Imran

Khan and even before filing of the case, last communication took
place with him, as told by my client over messaging (where he said
“do whatever you can”)and was put on record in the Recovery suit.

Mi lords by asking for date they only wish to prolong the and delay
the making of payment and there is no other reason. The DH is
poor guy who has loans on him, after paying EMIs hardly any
money is left with them, money from this decree will really them.

Order 9 Rule 13

If the summons were not duly served then they should have
challenged the decree under O.9 R.13

Regarding Section 47

Mi lords the power of executing courts is quite different and much

narrower than those available in appeal/revision or review and
they cannot travel behind the decree and sit in appeal over the
same.

Mi lords Supreme Court Judgments providing the grounds

that can be taken under Section 47 CPC have been attached
for mi lords’ perusal. None of the grounds taken by the JD
fall under any of those.

RAREST CASE

- In case of Municipal Council, Tiroda vs. K. Ravindran and Co. & Ors.
[2003(6) Bom. C.R. 287] wherein the original defendant no. 3 i.e., the
revision applicant had made an application for dismissal of suit before
the trial court on the ground that the proprietor cannot file a suit in
the trade name of the proprietary firm. The trial court rejected the
application for dismissal of the suit. The order of rejection was
challenged in the present case. The Hon'ble Bombay High Court partly
allowed the revision and directed original plaintiff to do rectification
in the name of plaintiff.