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Jagat Chunder Roy and ors. Vs. Iswar Chunder Roy - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal693
AppellantJagat Chunder Roy and ors.
Respondentiswar Chunder Roy
Cases ReferredParvatheesam v. Bepanna I.L.R.
Excerpt:
attachment - civil procedure code (act xiv of 1882), section 266--saleable property--share of partner in partnership business. - .....rejected the prayer for sale on the ground that a share in a partnership business could not be sold in execution of a personal decree against the partner. we are of opinion that this decision cannot be sustained. it is true that in the case of dwarika mohun das v. luchimoni dasi i.l.r. 14 cal. 384 it was held that a debt alleged to be due from one partner to another could not be attached and sold. but that case did not go so far as to lay down that a share in a partnership business could not be attached and sold in execution of a decree against one of the partners, provided that the execution proceeded in a proper manner. that case was in fact decided upon the authority of the case of tuffuzzul hossein khan v. raghu nath pershad 7 b.l.r. 186 : 14 moo. i.a. 40 in which their lordships.....
Judgment:

Macpherson and Beverley, JJ.

1. The sole question in this appeal is whether an execution creditor can attach and sell in execution of his decree, the share of his debtor in a partnership business. The decree-holder in this case applied for the attachment of a two-anna share belonging to the judgment-debtor in two trading firms, and the District Judge, after issuing notice of attachment, rejected the prayer for sale on the ground that a share in a partnership business could not be sold in execution of a personal decree against the partner. We are of opinion that this decision cannot be sustained. It is true that in the case of Dwarika Mohun Das v. Luchimoni Dasi I.L.R. 14 Cal. 384 it was held that a debt alleged to be due from one partner to another could not be attached and sold. But that case did not go so far as to lay down that a share in a partnership business could not be attached and sold in execution of a decree against one of the partners, provided that the execution proceeded in a proper manner. That case was in fact decided upon the authority of the case of Tuffuzzul Hossein Khan v. Raghu Nath Pershad 7 B.L.R. 186 : 14 Moo. I.A. 40 in which their Lordships of the Privy Council held that a claim as between two partners which had been referred to arbitration could not under the peculiar circumstances of that case be attached and sold in execution of a personal decree against one of the partners. It has nowhere, however, been laid down by the Judicial Committee of the Privy Council that the interest of one of the partners in a firm cannot be attached and sold in execution of personal decree against that partner. On the contrary, in the case of Deendyal Lal v. Jugdeep Narain Singh I.L.R. 3 Cal. 198 : L.R. 4 I.A. 247 their Lordships remarked as follows:

But, however nice the distinction between the rights of a purchaser under a voluntary conveyance and those of a purchaser under an execution sale may be, it is clear that a distinction may, and in some cases does, exist between them. It is sufficient to instance the seizure and sale of a share in a trading partnership at the suit of a separate creditor of one of the partners. The partner could not himself have sold his share so as to introduce a stranger into the firm without the consent of his co-partners, but the purchaser at the execution sale acquires, the interest sold, with the right to have the partnership accounts taken in order to ascertain and realize its value.

2. As a matter of fact, the interest of a partner in a partnership business is liable to be seized and sold in England in execution of a personal decree against that partner in favour of third parties, and there is nothing in the Code of Civil Procedure which in our opinion operates to prevent a similar course of proceeding in this country. We think, too, that the words in Section 266 of the Code, 'saleable property, moveable or immoveable, belonging to the judgment-debtor,' are sufficiently wide to include the interest which he possesses in a partnership business. It is true that, as pointed out by the Privy Council, the partner could not have himself sold his share so as to introduce a stranger into the firm without the consent of his co-partners; but the share might be sold with their consent; it may be sold by the Court. We therefore think that it is 'saleable property' within the meaning of the words in Section 266. If this were not so it is clear that a person by entering into a partnership might secure for himself complete immunity as against his private creditors. The case of Parvatheesam v. Bepanna I.L.R. 13 Mad. 447, to which reference has been made in the course of the argument, was in some respects different from the present. In that case the partnership had been dissolved by the death of one of the partners, and a creditor in execution of a decree against the son of that deceased partner attached and brought to sale, and himself purchased, the right which the son had to sue for an account and to recover what might be found due to the estate of his father. The Court held that the sale was good in law, and that the purchaser was entitled to sue for an account and to receive such sum as might be found due to the partnership account. In the present case the partnership is apparently still subsisting, and we think that the decree-holder is entitled to attach the partnership property, that is to say, the two shops mentioned in the application. If the decree is not satisfied, he may proceed to put up to sale the two-anna share in the partnership business which it is alleged belongs to his judgment-debtor. If any such sale takes place, it will then be open to the purchaser or to the other partners to apply to have the partnership business wound up and the accounts taken. Meanwhile all that we need decide is that the partnership property may be attached in this case and the share of the judgment-debtor brought to sale. We accordingly allow the appeal with costs and reverse the order of the District Judge, dated 3rd March 1892.


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