1. This second appeal under Section 100 of C.P.C is filed aggrieved against the judgment and decree, dated 25.04.2018, in A.S.No.166 of 2013 on the file of the IV Additional District Judge, Guntur, in confirming the decree and order dated 08.03.2013, in E.A.No.1 of 2013 in E.P.No.19 of 2007 in O.S.No.135 of 2004 on the file of the Senior Civil Judge, Sattenapalli.

2. The appellant herein is the respondent No.3, respondent No.1 is the decree holder and the respondent Nos.2 and 3 are the judgment debtors in E.A.No.1 of 2013 in E.P.No.19 of 2007 in O.S.No.135 of 2004 on the file of the Senior Civil Judge, Sattenapalli.

3. The petitioner/decree holder/plaintiff initiated action in E.A.No.1 of 2013 in E.P.No.19 of 2007 in O.S.No.135 of 2004 on the file of the Senior Civil Judge, Sattenapalli, with a prayer to grant leave to proceed against the third respondent for the realization of the decretal amount or in the alternative to determine the third respondent’s liability in the suit in case he disputes his liability in the interest of justice.

4. The learned Senior Civil Judge, Sattenapalli, allowed the petition with costs against the respondents/judgment Nos.1 and 2 and respondent No.3 by granting leave to the petitioner/decree holder/plaintiff to proceed against the third respondent for the realization of the decretal amount. Felt aggrieved of the same, the unsuccessful respondent No.3 in the above said E.A., filed A.S.No.166 of 2013, on the file of the IV Additional District Judge, Guntur. The learned IV Additional District Judge, Guntur, dismissed the appeal suit with costs, by confirming the decree and order passed by the executing Court in E.A.No.1 of 2013 in E.P.No.19 of 2007 in O.S.No.135 of 2004. Aggrieved thereby, the respondent No.3 in the said E.A.No.1 of 2013 approached this Court by way of second appeal.

5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the E.A.No.1 of 2013

6. The case of the petitioner/plaintiff/D.Hr., in brief, as set out in the petition averments in E.A.No.1 of 2013 in E.P.No.19 of 2007 in O.S.No.135 of 2004, is as follows:

                  The respondent No.3 is the close relative of the respondent No.2 and both of them, along with three others, entered into a partnership deed on 01.04.1996 in the name and style of “M/s. Kotturi Appaiah and Sons and Company”, at Guntur for business purposes. While so, the respondent No.2 on behalf of the respondent No.1-firm borrowed multiple amounts viz., Rs.94,000/-, Rs.55,200/- and Rs.55,000/- on 31.05.2000, 14.05.2000 and 14.05.2000 respectively and executed promissory notes on the respective dates. Thereafter, the respondent No.2 on behalf of the respondent No.1-firm made part payments under the promissory notes on 11.05.2003, 05.05.2003 and 05.05.2003 respectively. While so, the petitioner/plaintiff/D.Hr. filed a suit in O.S.No.135 of 2004 against the respondent Nos.1 and 2 for recovery of an amount of Rs.3,53,878/-, being the principal and interest due on the aforesaid three promissory notes said to have been executed on behalf of the respondent No.1-firm. Thereafter, the petitioner/plaintiff/D.Hr. also sought attachment of the immovable property of the respondent No.3 vide I.A.No.940 of 2004 and as such, the said property was attached on 05.07.2004 and the same was made absolute on 29.07.2004. Subsequently, after completion of the full-fledged trial, the suit was decreed against the respondent Nos.1 and 2 on 03.04.2006.

                  While so, after obtaining the decree, the petitioner/plaintiff/D.Hr. got the decree transmitted to the Senior Civil Judge Court, Guntur for execution of the decree against the respondent No.3 herein by filing E.P.No.19 of 2007. Thereafter, the said Execution Petition was dismissed by the learned I Additional Senior Civil Judge, Guntur on 05.02.2008, on the ground that the respondent No.3 was not a party to the suit in O.S.No.135 of 2004. The petitioner/plaintiff/D.Hr. pleaded that he has the right to proceed against the respondent No.3 by seeking leave of the Court and that the respondent No.3 is a partner of the respondent No.1-firm and also a close relative to the respondent No.2. Furthermore, the petitioner/plaintiff/D.Hr. has obtained a decree against the partners of the respondent No.1-firm, and as such the respondent No.3 is also liable to pay the decretal amount. Hence, the petitioner/plaintiff/D.Hr. was constrained to file the present application.

7. The respondent Nos. 1 and 2 remained ex parte.

8. The Respondent No.3 filed a counter before the executing Court. The brief averments in the counter are as follows:

                  The respondent No.1 is not at all indebted to the petitioner and that it was a collusive suit between the petitioner and the respondent No.2/J.Dr. The respondent No.3 pleaded that there is no decree against him and that a partner in a firm is not automatically responsible to pay any decretal debt against the firm. The respondent No.3 further pleaded that the Execution Petition filed against him is not maintainable and the same ought not to be numbered. He further pleaded that the order of attachment of the respondent No.3 property is illegal and untenable and further he is not a judgment debtor, within the meaning of the provisions of law. As per the partnership deed, any amount borrowed from any third party shall not bind the partners and the respondent No.2 had no right or authority to borrow any amount for the firm and as the respondent No.3 is not a judgment debtor to the suit, he is not liable to pay any amount to the decree holder and he prayed to dismiss the E.A. with costs.

9. On the basis of above pleadings, the learned Senior Civil Judge, Sattenapalli, framed the following points for consideration:

                  1) Whether the petitioner/D.Hr./plaintiff is entitled to grant leave to proceed against the third respondent for execution of the decree or in alternative to determine the liability of the third respondent in case he disputes his liability? and

                  2) To what relief?

10. During the course of enquiry in the executing Court, on behalf of the petitioner, P.W.1 was examined and Ex.A-1 was marked. On behalf of the respondent No.3, R.Ws.1 and 2 were examined and Exs.B-1 to B-3 were marked. Exs.X-1 and X-2 were also marked.

11. The learned Senior Civil Judge, Sattenapalli, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, allowed the petition with costs. Felt aggrieved thereby, the unsuccessful respondent No.3 filed the appeal suit in A.S.No.166 of 2013, on the file of the IV Additional District Judge, Guntur, wherein the following questions came up for consideration:

                  1) Whether the E.A.No.1 of 2013 filed by the decree holder is maintainable once the decree is passed against the defendants 1 and 2?

                  2) Whether the Execution Petition was filed without obtaining permission as contemplated under Order XXI Rule 50(1) and (2) of CPC?

                  3) Whether the E.A., can be filed even after dismissal of the Execution Petition No.19 of 2007? and

                  4) Whether the decree holder has to proceed on the original side in the order to get relief to recover the amount from the appellant as one of the partners?

12. The learned IV Additional District Judge, Guntur, i.e., the first appellate Judge, after hearing the arguments, answered the questions, as above, against the appellant/respondent No.3 and dismissed the appeal suit filed by the appellant/respondent No.3, by confirming the decree and order passed by the executing Court. Felt aggrieved of the same, the respondent No.3 in E.A.No.1 of 2013 in E.P.No.19 of 2007 in O.S.No.135 of 2004 filed the present second appeal before this Court.

13. On hearing both side counsels at the time of admission of the second appeal on 22.03.2019, a learned Judge of this Court framed the following substantial questions of law:

                  1) Whether the order impugned, which was passed in E.A.No.1 of 2013, is sustainable under facts and in law, in view of the principle issue as to whether the said E.A.No.1 of 2013 filed in an non-existent execution petition (E.P.) is maintainable?;

                  2) Whether the order earlier passed in E.P.No.19 of 2007 dismissing the E.P. operates as res judicata?; and, whether the decree holder is estopped by record from re-agitating the same issue by filing E.A.No.1 of 2013 in a non-existent E.P.?

14. Heard Sri N.Sriram Murthy, learned counsel for the appellant and Sri P.S.P.Suresh Kumar, learned counsel for the respondents.

15. The law is well settled that under Section 100 of CPC, High Court cannot interfere with findings of fact arrived at by first appellate Court, which is final Court of facts, except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.

                  In the case of Bhagwan Sharma v. Bani Ghosh(AIR 1993 SC 398), the Apex Court held as follows:

                  “The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.”

                  In the case of Kondira Dagadu Kadam v. Savitribai Sopan Gujar(AIR 1999 SC 471), the Apex Court held as follows:

                  “The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.”

16. The undisputed facts are that the decree holder/respondent No.1 obtained a decree against the respondent Nos.2 and 3 on 03.04.2006. Learned counsel for the decree holder contended that the decree was obtained against the respondent No.1-Firm and its partner by name Kothuri Kameswararao and on behalf of the partnership firm, the said Kameswararao signed on the promissory note and borrowed the money and the decree holder filed E.P.No.19 of 2007 in O.S.No.135 of 2004, and the same was dismissed on 05.02.2008.

17. The subject matter of the second appeal is that an application was filed by the decree holder vide E.A.No.1 of 2013, under Order XXI Rule 50(2) and Section 151 of the Code of Civil Procedure, to grant leave to proceed against the respondent No.3 for realization of the decretal debt. The said application was allowed on 08.03.2013, against which a first appeal was filed vide A.S.No.166 of 2013, on the file of the IV Additional District Judge, Guntur, by the respondent No.3 and the same was dismissed on 25.04.2018, against which, the present second appeal was filed by the appellant/respondent No.3.

18. It is admitted by the appellant that the decree holder obtained a money decree against the partnership firm and one of its partners by name Kothuri Kameswararao. No appeal has been filed either by the partnership firm or its partner Kameswararao and the said decree and judgment have attained their finality. Learned counsel for the appellant would contend that since the appellant is not a party to the suit and also to the decree, therefore, the present petition and the Execution Petition are not maintainable, since no money decree has been passed against him and that he is not liable to pay the decree amount.

19. Learned counsel for the respondent placed a copy of judgment in C.R.P.Nos.1292 & 1295 of 2011, passed by the Composite High Court of Andhra Pradesh, dated 03.02.2016. The facts in the aforesaid case law are different to the instant case

20. In a case of Ashutosh Vs. State of Rajasthan and Ors.,( AIR 2005 Supreme Court 34434) the Apex Court held as follows:

                  “19. The execution under this Rule can only be granted where a decree has been passed against a firm. A decree against the firm must perforce be in the firm's name. Under this Rule, execution may be granted against the partnership property. It may also be granted against the partners, in which case the decree-holder may proceed against the separate property of the partners.

                  20. In the case of Sahu Rajeshwar Rao vs. I.T.O., AIR 1969 SC 667, this Court ruled that the liability of the partner of the firm is joint and several and it is open to a creditor of the firm to recover the debt of the firm from any one or more of the partners. In a decree against partnership firm, each partner is personally liable except the minor whose liability is limited to his assets in the partnership.

                  21. In the case of Her Highness Maharani Mandalsa Devi & Ors. Vs. M. Ramnaram Private Ltd. & Ors., AIR 1965 SC 1718, while considering the scope of Order 21 Rule 50 this Court observed as follows:

                  "A suit by or in the name of a firm is really a suit by or in the name of all its partners. The decree passed in the suit, though in form against the firm, is in effect a decree against all the partners. Beyond doubt, in a normal case where all the partners of a firm are capable of being sued and of being adjudged judgment-debtors, a suit may be filed and a decree may be obtained against a firm under Order 30 of the Code of Civil Procedure, and such a decree may be executed against the property of the partnership and against all the partners by following the procedure of Order 21 Rule 50 of the Code of Civil Procedure."

21. Order XXX Rule 3 of the Code of Civil Procedure, 1908 reads as follows:

                  Order XXX- SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN:

                  Rule 3 Service. - Where persons are sued as partners in the name of their firm, the summons shall be served either-

                  (a) upon any one or more of the partners, or

                  (b) at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management or the partnership business, there, as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India:

                  Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within India whom it is sought to make liable.”

22. It is not the case of the appellant herein that the partnership firm was dissolved to the knowledge of the plaintiff before the institution of the suit. The appellant herein had admitted in his evidence in cross-examination that Pothuri Ramasesha Rao, Narasimha Rao, Kameswara Rao, Venkata Vara Prasada Rao and Ramakoteswara Rao are the partners of the partnership firm, wherein the appellant is Narasimha Rao and he admits that he is a partner of Kothuri Appaiah and Sons Company, which is a partnership firm.

23. The Full Bench of the Hon’ble Apex Court in Gambhir Mal Pandiya vs J. K. Jote Mills Co., Ltd., Kanpur and Another(AIR 1963 SUPREME COURT 243), held as follows:

                  “The rules provided forms for appearances by persons who entered appearances in answer to summons lawfully issued; but the later rules which are more exhaustive, though they do not dispense with the forms of appearance, prescribe how the presence of the firm and of individual partners is to be secured and how defences are to be raised. It is not necessary to reproduce the English rules. They are to be found in the Annual Practice, Vol. 1, P. 1151 (1962). The rules of 1891 are almost reproduced as S 30. 30 and 0. 21, r. 50, of the Code of Civil Procedure. Order 30 deals with procedure in suits against firms in the firm name, and 0. 21, r. 50 with the execution of decrees obtained against firms. These provisions are in themselves a Code. To understand the meaning of r. 50 (0. 21), one must first consider the provisions of 0. 30, which contains ten rules. The first rule enables a plaintiff to sue in the name of the firm, two or more persons liable as partners, or of which they were partners when the cause of action accrued; and the plaintiff may also apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accrual of the cause of action, partners in such firm. The rule also permit the signing of the written statement and the verification by one partner only. The second rule enables the defendant to ask for the disclosure of the names of partners, where a firm sues as a plaintiff. The third rule then provides for service of summons upon the firm and the partners. Such summons may be served, as the Court may direct:

                  a) upon all or any of the partners; or

                  b) upon any person having control or management of the business, at the principal place of business of the firm within India.

                  A service upon the firm is deemed to be good service, whether all or any of the partners are within or without India. But if the firm is dissolved to the knowledge of the plaintiff, the summons must be served on every person within India whom it is sought to make liable. The fourth rule provides for right of suit on death of partner. We are not concerned with that eventuality. The fifth rule then provides that where the summons is issued to a firm under r. 3, every person served shall be informed by notice whether he is served as a partner or as a person having the control and management of the business or both; but in the absence of notice the person is deemed to be served as a partner. Rule 6 lays down that persons served as partners in the name of the firm shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm. Rule 7 then says that if a notice is served upon a person having the control or management of the partnership business, he need not appear unless he is a partner. Rule 8 enables a person served as a partner to appear under protest denying that he is a partner, but the appearance does not preclude the plaintiff from serving a Summons on the firm and obtain an ex parte decree, if no other partner appears. The remaining rules do not concern us in this case.

                  From the above analysis, it is clear that a plaintiff need sue only the firm, but if be wants to bind the partners individually he must serve them personally, for which purpose he can get a discovery of the names of partners of the firm. Persons served individually may appear and file written statements, but the proceedings go on against the firm only. They may, however, appear and plead that they are not partners or were not partners when the cause of action arose. But even if no other partner appears, there may be a decree against the firm if the firm has been served with the summons The gist of 0. 30 thus is that the action proceeds against the firm, and the defence to the action by persons admitting that they are partners is on be half of the firm. Persons sued as partners may, however, appear and seek to establish that they are not partners or were not partners when the cause of action arose; but if they raise this special plea, they cannot defend the firm. This was laid down in connection with the analogous provisions of the English rule in Weir & Co. v. Mc Vicar & Co.(1). Partners appearing and admitting their positions as partners can only defend the firm, because the suit continues in the firm's name. The law is thus not concerned with a fight between the partners inter se, and an action between the partners is not to be tried within the action between the firm and the plaintiff. of course, the partners who admit that they are partners need Dot raise a common defence. They may raise inconsistent defences., but all such defences must be directed to defend the firm and the plaintiff must surmount all such defences. See Ellis v. Wadeson (2). The purport of the rules as well as the two English oases (1) (1925) 2 K. B. 127.

                  (2) (1889) 1 Q B. D. 714.

                  which have correctly analysed, the rules on the subject (the English and the Indian rules being alike) is that the partnership is sued as a partnership, and though the partners may put in separate defences, those defences must be on behalf of the firm. If some of the partners do not appear, those that do, must defend the firm; but if no proper defence is raised by them, the plaintiff cannot be deprived of a judgment. The judgment and decree thus obtained are executable against the partnership assets. This brings in the provisions of 0. 21, r. 50, of the Code.

                  That rule enables a decree obtained against a partnership firm to be executed against the property of the partnership. t, it enables the decree to be executed individually against a person who appeared in his own name under r. 6 or r. 7 of 0. 30 or who admitted on the record or was adjudged to be a partner. Next, the decree can be executed against any person who is served individually as a partner but has failed to appear. Next, it permits the decree to be executed with the leave of the Court against persons belonging to the category of the persons above mentioned, provided that. they are summoned and either admit their liability or after an issue is tried, their liability is determined..”

24. In the case at hand, a partnership firm is the defendant No.1 in the suit.

                  Therefore, the service upon the partnership firm is deemed to be a good service on behalf of all the partners, whether all or any of the partners are within India or outside India. If the firm is dissolved to the knowledge of the plaintiff, the summons must be served on every person within India, whom it is sought to be made liable. It is the admitted case of the appellant that he is a partner of the firm. It is the case of the decree holder that the appellant’s property is attached in the suit proceedings itself. It is not the case of the appellant that the partnership firm is dissolved.

25. Learned counsel for the appellant would contend that since the main Execution Petition is dismissed, the leave application is not maintainable in the said Execution Application. Admittedly, a decree is passed against the firm and one of the partners of the firm, and the said decree debt is not yet discharged by the firm. The Execution Petition only speaks about the execution of the decree; admittedly, the decree debt is not yet discharged by the partnership firm. The leave application under Order XXI Rule 50(2) and Section 151 of CPC is numbered as E.A.No.1 of 2013, by the executing Court and the evidence of both sides is also recorded in the said proceedings and on hearing both sides, leave is granted by the executing Court, against which a first appeal is filed by the respondent No.3 and the said first appeal was dismissed by the First Appellate Court. Therefore, the subject matter of the second appeal is whether leave has to be granted or not against the appellant herein to proceed to execute the decree. Admittedly, a decree has been passed against the partnership firm and the appellant herein is a partner. It is undisputed by the appellant that the decree debt is not yet discharged. The executing Court has not raised any objection to numbering the execution application vide E.A.No.1 of 2013, and invited both the parties in the said proceedings to adduce evidence. It is well settled that “a fault of the Court should not harm any litigant, who came to the Court seeking justice.” However, whether the Execution Petition is pending or dismissed, it is not an issue until the decree debt is discharged by the judgment debtors. The decree holder is at liberty to file many number of execution applications to proceed to execute the decree subject to limitation. Here, the leave application is filed vide E.A.No.1 of 2013, by the decree holder and the executing Court allowed the said application on hearing both sides and the First Appellate Court also confirmed the said order. Therefore, both Courts have concurrently held that the decree holder is entitled to obtain leave to proceed against the appellant herein. Now, it is not open to the appellant in the second appeal proceedings to contend that leave cannot be granted in Execution Petition, since suit summons has not been served on the appellant.

26. In view of the legal position as stated supra, a service of notice or summons on the firm is deemed to be good service on behalf of all the partners. It is not the case of the appellant that the partnership firm is dissolved. It is admitted by the appellant that he is a partner of the firm and it is not the case of the appellant that the partnership firm is dissolved.

27. The legal position in this regard is well settled by the Full Bench of the Hon’ble Apex Court as stated supra, wherein the Full Bench of the Apex Court in its conclusion in the judgment held as follows:

                  " In our judgment, the view expressed in these later cases is the correct one. As we have pointed out, 0. 30 of the code permits suits to be brought against firms. The summons may be issued against the firm or against persons who are alleged to be partners individually. The suit, however, proceeds only against the firm. Any person who is summoned (1) I.L.R. [1956] Bom. 193.

                  (2) A.I.R. 1932 Bom. 516.8.

                  (3) (1944),51 C.W.N.488.

                  (4) I. L. R.[1959] Bom. 146.

                  (5) 1.L.R.[1955] Mad..1106. can appear, and prove that he is not a partner and never was; but if he raises that defence, he cannot defend the firm. Persons who admit that they are partners may defend the firm, take as many pleas as they like but not enter upon issues between themselves. When the decree is passed, it is against the firm. Such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually. They are (1) persons who appeared in answered to summons served on them as partners and either admitted that they were partners or were found to be so, and (2) persons who were summoned as partners but staved away. The decree can also be executed against persons who were not summoned in the suit as partners, but r. 50(2) of 0. 21 gives them an opportunity of showing cause and the plaintiff must prove their liability. This enquiry does not entitle the person summoned to reopen the decree. He can only prove that be was not a partner, and in a proper case, that the decree is the result of collusion, fraud or the like. But, he cannot claim to have other matters tried, so to speak, between himself and his other partners. Once he admits that he is a partner and has no special defence of collusion, fraud, etc. the Court must give leave forthwith."

28. In the case at hand, it was simply pleaded by the appellant that the respondent No.2 is not having any right or authority to borrow any amount on behalf of the firm. In the case at hand, the respondent No.2 is managing the firm and he borrowed money from the plaintiff and the partnership firm stamp is also affixed on the pronote underneath the signature of the respondent No.2 on the promissory note. In the case at hand, the appellant also could not prove any collusion between the decree holder and the respondent No.2.

29. The appellant contended that the dismissal of the earlier Execution Petition vide E.P.No.19 of 2007 operates a res judicata, here, the decree debt is not yet discharged by the partnership firm or by any of the partner of the partnership firm. Unless and until the decree debt is discharged, the decree holder is empowered to file many number of execution applications till the decree debt is discharged, subject to limitation. Therefore, the principles of res judicata are not at all applicable to the present facts of the case.

30. In the case at hand, on appreciation of the entire evidence on record, the executing Court allowed the application filed by the decree holder to grant leave to proceed against the appellant herein for execution of the decree and the learned First Appellate Judge also came to the same conclusion as arrived by the learned trial Judge and dismissed the appeal filed by the appellant. In the light of the material available on record, and upon earnest consideration now, it is manifest that the substantial questions of law raised in the course of hearing in the second appeal on behalf of the appellant, did not arise or remain for consideration. Therefore, this Court is satisfied that the second appeal did not involve any substantial question of law for determination.

31. In the result, the second appeal is dismissed by confirming the judgment and decree dated 25.04.2018, in A.S.No.166 of 2013, passed by the learned IV Additional District Judge, Guntur.

I.A.No.1 of 2025:

32. The case of the appellant/respondent No.3 is as follows :-

                  The respondent No.1/plaintiff filed a suit in O.S.No.135 of 2004, on the file of the Senior Civil Judge Court, Sattenapalli, seeking recovery of the suit amount against the respondent Nos.2 and 3, and the same was decreed on the basis of the alleged promissory notes said to have been executed by the respondent No.1 in favour of the plaintiff, his wife and son. While so, the decree holder had filed an Execution Petition vide E.P.No.19 of 2007 in O.S.No.135 of 2004, on the file of the Senior Civil Judge, Sattenapalli, and the same was dismissed on merits on 05.02.2008, against which the decree holder did not prefer any revision or appeal.

                  While so, the respondent No.1/decree holder filed E.A.No.1 of 2013 in E.P.No.19 of 2007 in O.S.No.135 of 2004, seeking leave to proceed against the appellant/respondent No.3 for recovery of the decree debt on the premises that the respondent No.3 is a partner of the said partnership firm. The appellant pleaded that E.P.No.19 of 2007 was already dismissed and as such the E.A. is not maintainable. He further pleaded that the alleged decree is collusive and fraudulent to cause wrongful loss to the appellant and also there are disputes between the appellant and the respondent No.3 herein. The appellant further pleaded that the part payments under the promissory notes were not made on behalf of the firm and the suit filed by the respondent No.1 is barred by limitation. Furthermore, the respondent Nos.2 and 3 remained ex parte in the execution proceedings and thereafter, the appellant came to know that the decree holder had filed another Execution Petition vide E.P.No.289 of 2014 in O.S.No.135 of 2004 and the same was also dismissed as not pressed. He further pleaded that the decree holder has also filed E.P.No.27 of 2015 in O.S.No.135 of 2004 and the same is directed to be put up after the disposal of the first appeal in A.S.No.166 of 2013 and the documents obtained by the appellant reveal that E.A.No.1 of 2013 in E.P.No.19 of 2007 in O.S.No.135 of 2004, on the file of the Senior Civil Judge, Sattenapalli, is not maintainable. Hence, the present interlocutory application.

33. The application in I.A.No.1 of 2025 is filed by the petitioner/appellant in the year 2025, in the main second appeal. It is a fact that the decree is obtained against the partnership firm and one of the partners of the firm by the plaintiff, and no appeal has been filed against the said decree and judgment by the appellant or the partnership firm. Subsequently, an application vide E.A.No.1 of 2013 was filed by the decree holder to grant leave to proceed against the appellant herein, wherein the leave was granted by the executing Court and a first appeal was filed in the year 2013 by the appellant, and the said appeal was also dismissed, against which the second appeal was filed in the year 2018.

                  Now, the appellant herein filed the present interlocutory application in the year 2025, to receive additional evidence.

34. Order XLI Rule 27 of the Code of Civil Procedure, 1908 reads as under:

                  Order XLI- APPEALS FROM ORIGINAL DECREES:

                  Rule 27:- Production of additional evidence in Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-

                  (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

                  [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

                  (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

                  (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

35. The general principle is that the Appellate Court should not travel outside the record of the trial Court and cannot take any evidence in the second appeal. However, as an exception, Order XLI Rule 27 of the Code of Civil Procedure, 1908, enables the Appellate Court to take evidence in exceptional circumstances only. In the present case at hand, the appellant herein filed an application to receive the order passed in E.P.No.27 of 2015 dated 18.09.2015 and also an order dated 15.12.2014, in another Execution Petition to receive additional evidence, which does not come under the ambit of Order XLI Rule 27 of the Code of Civil Procedure, 1908. It is well settled that “in the absence of pleading, the evidence, if any, produced by the parties in the second appellate stage cannot be considered.” It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts shall be pleaded by a party in support of the case set up by it. For the aforesaid reasons, I do not find any ground to allow the present application. Hence, the present interlocutory application is also dismissed.

36. In the result, I.A.No.1 of 2025 in S.A.No.1292 of 2018 and S.A.No.1292 of 2018 are dismissed, confirming the judgment and decree dated 25.04.2018, in A.S.No.166 of 2013, passed by the learned IV Additional District Judge, Guntur. Considering the facts and circumstances of the case, each party do bear their own costs in the second appeal.

                  As a sequel, miscellaneous petitions, if any, pending in the Second Appeal shall stand closed.