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Nikanth Balppa Mangave Shop and anr. Vs. Raj and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberWrit petn. No. 3078 of 1981
Judge
Reported inAIR1982Bom388
ActsPartnership Act, 1932 - Sections 49; Code of Civil Procedure (CPC), 1908 - Order 21, Rule 50(1)
AppellantNikanth Balppa Mangave Shop and anr.
RespondentRaj and Co. and ors.
Appellant AdvocateK.J. Abhyankar, Adv.
Respondent AdvocateBhimrao N. Nalik, Adv.
Excerpt:
.....49 of the partnership act, 1932, that where there were joint and several decree against the firm and its partners, then the decree should be executed as it stand - hence, neither section 49 of the act could invoked nor order 21, rule 50 (1) of the civil procedure code, 1908 could be invoked, in the case - - in the present case, the decree clearly makes each of the defendants severally liable to pay and satisfy the decretal amount. in case of a decree which clearly makes the debt payable by the firm as such and also by each of the defendants, who may happen to be its partners, the principle is clearly not available. for it is not as if that in every case where the debt is of the partnership and the decree is made joint and several against the firm as well as the partners of the..........the firm and there is no personal decree against the other defendants who were jointed to the suit as partners.7. when the decree is made by use of the words 'jointly and severally' there is no question of any ratable distribution of the liability. it is in those cases only where the liability can be ratably distributed inter se among the judgment-debtors on the terms of t he decree that, presumbaly, the principles of s. 49 may be available for application. in all other cases the terms of the decree is determinative of t he liability.8. that being the position, the impugned order is unsustainable and the same is set aside. the attachment of the amount in deposit to continue. it is for executing court to make the eventual order as to the payment of that money. the rule is made.....
Judgment:
ORDER

1. By this petition the challenge is to the order made by the civil judge, senior Division, Kolhapur, raising the attachment with regard to an amount of Rs.16,000/- to Rs. 17,000/- which was attached in execution of a decree passed in the suit, being special civil suit No. 206 of 1973. That decree reads as follows:-

'Plaintiff's suit against defendants 1 to 6 is decreed in the sum of Rs. 93, 971.78 Ps. With future interest on Rs. 93, 871.78 Ps. At 6 % per annum from the date of this suit till the realisation of the entire amount herein.

Defendants 1 to 6 jointly and severally shall pay all this amount to plaintiff firm by bearing its costs of this suit in addition to their own.

Decree shall be drawn accordingly.'

2. It is not in dispute that the amount that was attached was the deposit belonging to judgment-debtor No.4 and was available for attachment. After the attachment, the said judgment-debtor No.4 filed an objection which has been decided in his favour and attachment has been decided in his favour and attachment has been lifted. By the impugned order, the learned trial judge held that t he decretal amount was a joint debt due from the firm and upon the principles underlying S. 49 of the partnership Act, 1932 the separate property of the partner should not be proceeded against and applied for the satisfaction of the decretal amount. That view of law is under challenge in the present petition.

3. Now, as far as the decree is concerned, it makes the decretal amount jointly and severally payable. Primarily,therefore. Such a decree has to be executed as is ordered and made payable and that shows that not only the liability is joint but serveral against each of the defendants. The executing court is bound to execute the decree as it is made. Had there been any other direction in keeping with the principles underlying S. 49 of the partnership Act, the question would have been different. In the present case, the decree clearly makes each of the defendants severally liable to pay and satisfy the decretal amount.

4. No doubt, the principles underlying S. 49 of the partnership Act have been applied when the question of firm debts are In issue, but those have been applied in principle and not by reason of the statute. S. 49 has to be read along with S. 25 of the partnership Act and if so read. It would indicate that, even while applying the provisions of S. 49 the debt by the third party can be recovered by proceeding against the partners. Before the principles underlying S. 49 are pressed in aid, all the conditions that bear upon the principles must available. In case of a decree which clearly makes the debt payable by the firm as such and also by each of the defendants, who may happen to be its partners, the principle is clearly not available. For it is not as if that in every case where the debt is of the partnership and the decree is made joint and several against the firm as well as the partners of the firm, such principle would hold good in the matter of execution of a decree in favour of a third party. If such a principle were to be universally applied. Several complications will arise in the matter of execution of the decree which is obtained by the third party is not concerned by the third party who is not concerned with the item se rights and obligations of the firm and its partners. In fairness and in law, therefore, the matter must depend on the terms of a given decree. What is required to be executed is the decree as such and, if the terms is clear that the same is liable to be executed even servally. Then the executing court cannot refuse the execution on the ground that the firm is made liable and it should be first proceeded against.

5. The provisions of O.21 R.50 (1) of the civil P.C. are clearly enabling in nature and same permit a decree made against a firm to be executed in the manner as is indicated by cls. (A), (b) , (c), thereof. That such a decree could be executed against the personal property of the partners is well settled. (See Topanmal v. M/s Kundomal Gangaram, : AIR1960SC388 , and Gajendra Narain Singh v. Johrimal prahlad, : AIR1964SC581 ) . The provisions of this Rule are not intended for making it compulsory upon the decree-holder to exhaust the remedies in the manner laid down by cl. (A) or cl. (B) or cl. (C) . In other woeds, it is not necessary to proceed first and with property of the partnership and without that as if no recourse can be had to proceed against the personal property of the persons mentioned in cls. (B) and (c).

6. It is obvious that these enabling provisions of O. 21 R. 50 (1) e govern the case of a decree which has been passed against the firm and not against the firm and against the partners personally. Further more, as stated above, a court executing the decree cannot go behind the decree . It must take the decree, as it stands. For the decree is binding and conclusive between the parties to the suit. (See Topanmal v. M/s. Kundomal Gangaram, : AIR1960SC388 ). Therefore, when a decree is made not only against the firm but also against the partners personally, it follows that by recourse to any other method the executing court cannot refuse to execute the decree which is clearly a personal decree against the partners. The question when such a personal decree is not made what should be the procedure to be followed, is not relevant for determining such a position, suffice it to say that the provisions of O.21 R.50 (1) of the civil P.C. are attracted when the decree is in terms against the firm and there is no personal decree against the other defendants who were jointed to the suit as partners.

7. When the decree is made by use of the words 'jointly and severally' there is no question of any ratable distribution of the liability. It is in those cases only where the liability can be ratably distributed inter se among the judgment-debtors on the terms of t he decree that, presumbaly, the principles of S. 49 may be available for application. In all other cases the terms of the decree is determinative of t he liability.

8. That being the position, the impugned order is unsustainable and the same is set aside. The attachment of the amount in deposit to continue. It is for executing court to make the eventual order as to the payment of that money. The Rule is made absolute with no order as to costs.

9. Petition allowed.


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