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Lakkajee Dolaji and Co. Vs. Mahamod Gous Karimsaheb Ainapuri and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1162 of 1961
Judge
Reported inAIR1963Mys16; ILR1962KAR451
ActsCode of Civil Procedure (CPC) , 1908 - Sections 73
AppellantLakkajee Dolaji and Co.
RespondentMahamod Gous Karimsaheb Ainapuri and ors.
Advocates:Padubidri Raghavendrarao, Adv.
Excerpt:
.....is what is clearly explained in re: in my opinion, both the decrees were against the same judgment-debtor and that being so, the petitioner was clearly entitled to the rateable distribution which he sought......on which that decision rested cannot, in my opinion, avail respondent 6 in this case. the decree obtained by respondent 6, although it was against the firm of inapure, was in effect against the partners of the firm, those partners having been sued in the compendious name of the firm. that this is so is what is clearly explained in re: hand ford frances and co.; ex p. hand ford frances and co., (1899) 1 qb 566, in which it was observed:'it is settled law that the effect of the provisions with regard to suing partners in their firm name is merely to give a compendious mode of describing in the writ the partners who compose the firm and that the plaintiff who sues partners in the name of their firm in truth sues them individually, just as much as if he had set out all their names;.....
Judgment:
ORDER

A.R. Somnath Iyer, J.

1. The question involved in this revision petition is whether the decree obtained by the petitioner was against the same judgment-debtor against whom respondent 6 obtained his decree so as to entitle him to rateable distribution under Section 73 of the Code of Civil Procedure.

2. Respondent 6 obtained a decree in a Bombay Court against a firm called M. K. Inapure. The petitioner also obtained a decree In the same Court of Bombay but he obtained a decree not against the firm as such but against all the partners of the firm. Both these decrees were transferred to the Court below and it is in that Court that the petitioner made an application for rateable distribution after he had got attached the same properties which respondent 6 had got attached.

3. The Court below took the view that since the petitioner had obtained a decree against the partners of the firm and not against the firm the decrees had not been made against the same judgment-debtor and that therefore, the petitioner could not obtain rateable distribution. This view is rested on a decision of the High Court of Lahore in Sadhu Ram v. Firm Dhanpat Rai Telu Ram, AIR 1937 Lah 937.

4. That was a case in which two decrees were obtained against a person, one against him in his individual capacity and another against him as a partner of a firm. The view expressed was that that person cannot be treated as the same judgment-debtor within the meaning of Section 73 of the Code of Civil Procedure.

5. It seems to me that the facts of that case were very different from the facts of the case before me. The principle on which that decision rested cannot, in my opinion, avail respondent 6 in this case. The decree obtained by respondent 6, although it was against the firm of Inapure, was in effect against the partners of the firm, those partners having been sued in the compendious name of the firm. That this is so is what is clearly explained in Re: Hand ford Frances and Co.; Ex P. Hand ford Frances and Co., (1899) 1 QB 566, in which it was observed:

'It is settled law that the effect of the provisions With regard to suing partners in their firm name is merely to give a compendious mode of describing in the Writ the partners who compose the firm and that the plaintiff who sues partners in the name of their firm in truth sues them individually, just as much as if he had set out all their names; ........'

The decree obtained by the petitioner was against those very partners of the firm and that being so, it is impossible for anyone to suggest that the decree obtained by the petitioner was not against the same judgment debtor against whom respondent 6 had obtained his decree. In my opinion, both the decrees were against the same Judgment-debtor and that being so, the petitioner was clearly entitled to the rateable distribution which he sought.

6. The view that I have taken in this case receives support from Kritanta Kumar Guha v. Pullin Krishna, AIR 1938 Cal 316. There the claim for rateable distribution was made by a person who had obtained a decree against an individual partner of the firm in his capacity as such partner. The rival decree-holder had obtained his decree against the firm. The view taken by their Lordships of the High Court of Calcutta was that the judgment-debtor in both the cases was the same person. With this view, I respectfully agree.

7. I therefore allow this revision petition, set aside the order made by the Court below and direct it to dispose of the application for rateable distribution presented by the petitioner in accordance with law.

8. The costs of this revision petition will be paid by respondent 6.


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