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L. Lachmi NaraIn Vs. Pearey Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All468
AppellantL. Lachmi Narain
RespondentPearey Lal and anr.
Excerpt:
- .....that all the management of the partnership should vest in the receiver. we allow this revision in part and set aside this portion of the order. the result is that although the receiver will continue and the court will be at liberty to retain the account books, the applicant will not be prevented from realizing, if he so chooses the debts of the firm, nor will the receiver be authorized to manage the whole partnership firm. the parties will bear their own costs.
Judgment:

Sulaiman, Ag. C.J.

1. This is an application in revision from an order dated 8th November 1930, passed by the Munsif of Hathras in the execution department.

2. Kedar Nath is a partner of a firm of which Lachmi Narain is the other partner. The interest of Kedar Nath in this firm was attached by the decree-holder and the Court passed an order under Order 21, Rule 49 charging the interest of the judgment-debtor partner in the partnership property and appointing a receiver of his share. It has to be admitted that no previous notice of the application, as required by Sub-rule (4), was issued to the other partner. This was undoubtedly irregular. The learned Munsif seems to suggest that this was cured by a subsequent notice dated 24th June 1930. But that notice related to the question whether the partners should not be prohibited from realizing any debts in future. The irregularity however is not now of any serious significance because the applicant does not object to the appointment of the receiver, nor wants that he should be removed.

3. The Court did not make any express order directing accounts and inquiries, but it was understood that this followed from the appointment of the receiver. The Court did order that the receiver should take over the books of the firm. As the applicant was the manager of the firm and he was no party to the execution proceedings, there was an irregularity in directing the receiver to take possession of the books, for it was intended that he should do so even against the will of the managing partner. The books were filed in Court by the receiver and were ultimately taken away by the managing partner. Later on, at the instance of the decree-holder, the books were ordered to be produced, in Court and they were produced at one time. They were taken back by the manager but were again filed in Court. They have accordingly been brought into Court under its order. They had not been seized by the receiver. In this there was no irregularity. It is open to the learned Munsif not to allow these books to be returned to the managing partner if he has any reasonable ground for suspecting that they have in any way been tampered with.

4. The order of 8th November 1930 contains an expression of opinion that the Court has wide powers and the only proper course open to an execution Court is 'to vest all management of the partnership in the receiver.' That this was the intention of the learned Munsif appears from the subsequent order passed by him on 18th November 1930, under which he directed that in future none of the partners should realize any of the outstanding debts. We find no justification for holding that under Order 21, Rule 49, while charging the interest of a partner who is a judgment-debtor and vesting it in the receiver the Court can appoint the receiver as the manager of the entire partnership which will involve the consequence of the dispossessing of all the other partners. It is only the interest of the partner in the partnership property which vests in the receiver and which can be dealt with by the Court, and not the entire partnership itself. The part of the order is wholly unauthorized and is without jurisdiction.

5. This order sought to be revised by this application is one disallowing the applicant's objection and holding that all the management of the partnership should vest in the receiver. We allow this revision in part and set aside this portion of the order. The result is that although the receiver will continue and the Court will be at liberty to retain the account books, the applicant will not be prevented from realizing, if he so chooses the debts of the firm, nor will the receiver be authorized to manage the whole partnership firm. The parties will bear their own costs.


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