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Kothapalli Kanuparthi Subbayya and anr. Vs. Nichenametla Subbarayadu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1937Mad730
AppellantKothapalli Kanuparthi Subbayya and anr.
RespondentNichenametla Subbarayadu and ors.
Excerpt:
- .....been registered, and dismissed the application. section 69(1) provides that no suit to enforce a right arising from a contract shall be instituted by a member of a firm suing as a partner against the firm unless the firm is registered; and sub-section 2 provides that no suit to enforce a right arising from a contract shall be instituted by or on behalf of an unregistered firm against a third party. then comes sub-section 3 which applies the provisions of sub-sections 1 and 2 to claims by way of set-off or other proceedings to enforce a right arising from a contract, and then follow certain exceptions.2. i think the effect of sub-section 3 is that the prohibition against a suit by the member of an unregistered firm or by an unregistered firm against a third party to enforce a contract.....
Judgment:
ORDER

Cornish, J.

1. Respondent 1 in this civil revision petition filed a suit against respondent 2, and in that suit attached before judgment a quantity of indigo. Thereupon, the present petitioner, claiming that the indigo was the property of a partnership of which he and respondent 2 were members, made an application under Order 21, Rules 49 and 58 and Order 38, Rule 8 to have the attachment set aside. The lower Court held that Section 69, Partnership Act, was a bar to this application, inasmuch as the alleged partnership had not been registered, and dismissed the application. Section 69(1) provides that no suit to enforce a right arising from a contract shall be instituted by a member of a firm suing as a partner against the firm unless the firm is registered; and Sub-section 2 provides that no suit to enforce a right arising from a contract shall be instituted by or on behalf of an unregistered firm against a third party. Then comes Sub-section 3 which applies the provisions of Sub-sections 1 and 2 to claims by way of set-off or other proceedings to enforce a right arising from a contract, and then follow certain exceptions.

2. I think the effect of Sub-section 3 is that the prohibition against a suit by the member of an unregistered firm or by an unregistered firm against a third party to enforce a contract is extended to other proceedings which have for their purpose the enforcement of a right arising under a contract between the parties to the proceedings. The question is therefore: Is the present petitioner's application to have the attachment removed, a proceeding to enforce a right arising under a contract between him and respondent 1? In my opinion it is not. The petitioner is seeking to enforce no right which depends on any contract between him and respondent 1. The right which he has, and which he is seeking to enforce, is that his property shall not be attached except as allowed by law. This does not depend on contract but on the provisions of the Code governing the attachment of partnership property. In my opinion the lower Court's order was wrong, and the matter must be remanded for the Court to decide whether the property attached was partnership property. If it was attached contrary to the provisions of the Code, the fact that respondent 1 has got a decree in his suit against respondent 2 will not mend the position. The civil revision petition is allowed with costs.


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