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R.E. Ramsay Vs. Pasupatinath Malia and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 148 of 1954
Judge
Reported inAIR1955Cal255
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 49, 49(2), 49(3) and 49(4) - Order 34, Rule 6
AppellantR.E. Ramsay
RespondentPasupatinath Malia and anr.
Appellant AdvocateJagadish Ch. Ghose and ;Satya Priya Ghose, Advs.
Respondent AdvocatePurushottam Chatterji and ;Ajay K. Basu, Advs.
DispositionAppeal allowed
Cases ReferredJagat Chunder v. Iswar Chunder
Excerpt:
- .....sufficient for that purpose. the first sub-rule of rule 49 is:'save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such.'looking at this alone i would think that the interest of a partner in the partnership business cannot be properly called 'property belonging to a partnership and consequently the bar against the sale of property belonging to a partnership as enacted in sub-rule (1) would not in any way bar the sale of any interest in the partnership. coming however to sub-rule (2), we find that the legislature provides:'the court may, on the application of the holder of a decree against a partner, make an order charging the.....
Judgment:

K.C. Das Gupta J.

1. The respondents obtained a consent decree-against the appellant in the following terms:

'It is ordered and decreed that the suit is finally decreed on admission. Let there be a decree for Rs. 1,45,722-1-9 pies. Plaintiffs do further get a decree for khas possession of the property in suit as prayed for with costs. Subsequent interest do run on the decretal dues at 6 per cent, per annum. Schedule 'B' property do remain in charge for Rs. 1,45,722-1-9 pies and that the sura of Rs. 3630-15-9 pies be paid by the defendant to the plaintiffs on account of costs of this suit with interest at six per cent, per annum from this date upto date of realisation.'

2. In execution of the decree the respondents realised Rs. 25,000/- by sale of the Schedule B property. Thereafter, the present execution case was started by them for recovery of the balance of Rs. 1,39,028-11-6 pies and their prayer is for realisation of the amount by sale after notice to the judgment-debtor and other partners of all the interest and share of the judgment-debtor in the partnership known as and carried on under the name and style of Searsole Goal and Industries Company as per and under the registered deed of partnership dated 28-5-1950. An objection was raised under Section 47, Civil P. C. by the appellant to this prayer for execution on the ground that his interest in the partnership cannot be realised and sold in the manner as prayed for and that the only way in which the decree-holder can realise any part of the decree from the interest in the partnership is by proceeding in the manner laid down as provided in Order 21, Rule 49, Sub-rules (2), (3), (4) and (5).

Another objection taken was that as the decretal amount was charged on certain properties, it was necessary for the decree-holders to obtain a further decree under Order 34, Rule 6, Civil P. C. before they could proceed against the other properties of the judgment-debtor.

3. The learned Court below held that it was not necessary for the decree-holders to obtain arty order under Order 34, Rule 6, Civil P. C. as the decree was a consent decree. It also held that there was substantial compliance with the provisions of Order 21, Rule 49(2) and (4), In this view it dismissed the objection under Section 47, Civil P. C.

4. In appeal, it is urged before us first that the learned Court below was wrong in thinking that there was a substantial compliance with the provisions of Order 21, Rule 49(2) and (4) as, in fact, there was not even any application filed at all under Order 21, Rule 49(2), and necessarily there was no service of such application under Sub-rule (4). It is also contended that the learned Judge was wrong in thinking that it was not necessary for the decree-holders to obtain any order under Order 34, Rule 6, Civil P. C.

5. There is, in my opinion, no substance in the second ground. As was held by this Court in -- 'Haripada Datta v. Sashi Bhusan : AIR1928Cal668 , there was no necessity to obtain a decree under Order 34, Rule 6, Civil P. Order in a case like this where a decree was passed upon the terms of a solenama. I consider myself bound by the authority of the above decision to hold that in the present case, it is not necessary for the decree-holder to obtain a decree under Order 34, Rule 6, before proceeding against other properties.

6. The other ground raised by the objector should however, in my opinion, succeed. Before the provisions of Order 21, Rule 49 were enacted in the Code of Civil Procedure, the law as regards the saleability in execution of shares of a partnership business was laid down in -- 'Jagat Chunder v. Iswar Chunder', 20 Cal 693 (B). It was held there that the

'share of a partner in a partnership business is 'saleable property' within the meaning of those words in Section 266, Civil P. C., and can therefore be attached and sold by an execution creditor in execution of a decree against that partner.'

The question is whether this right has been curtailed by the provisions of Order 21, Rule 49 as now embodied in the Code of Civil Procedure.

7. Mr. Chatterji, appearing for the respondents, has argued that the law should not be considered to have been changed unless the words used by the Legislature clearly show this. With this, I agree; but I think It reasonable to hold on consideration of the provisions of Rule 49 of Order 21 as a whole that the Legislature did intend to change the law in this matter and the words used by them are clear and sufficient for that purpose. The first sub-rule of Rule 49 is:

'Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold In execution of a decree other than a decree passed against the firm or against the partners in the firm as such.'

Looking at this alone I would think that the interest of a partner in the partnership business cannot be properly called 'property belonging to a partnership and consequently the bar against the sale of property belonging to a partnership as enacted in Sub-rule (1) would not in any way bar the sale of any interest in the partnership. Coming however to Sub-rule (2), we find that the Legislature provides:

'The Court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property and profits with payment of the amount due under the decree, and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared 6r accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or, made if a charge had been made in favour of the decree-holder by such partner, or as the circumstances of the case may require.'

8. Sub-rule (3) provides;

'The other partner or partners shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed to purchase the same.'

9. Sub-rule (4) provides:

'Every application for an order under Sub-rule (2. shall be served on the judgment-debtor and on his partners or such of them as are within British India.'

10.. Thus, it, is quite clear that if a decree-holder wants to have the interest of a partner in the partnership property sold, it is quite open to him to make an application asking for the Court to act under Sub-rule (2). If he makes such an application, the Court may, in its discretion, pass an order charging the interest of such partner. If such a charging order is made, the other partners shall be at liberty to redeem that interest. In addition to making a charging order, the court may also appoint a receiver of the share of such partner. . Apart from that, the Court may also make an order for the sale of such interest. If such an order for sale is made, it will be open to the other partners to purchase the same. In order to give the other partners an opportunity to redeem the interest charged where a charging order has been made or to purchase the interest of the judgment-debtor where a sale is directed, Sub-rule (4) provides that every application shall be served on the judgment-debtor.

11. The question is whether even though it Is open to the decree-holder to proceed by way of an application: under Order 21, Rule 49(2), it Is open to him to proceed apart from this by asking for sale of the partnership' interest as In the case of other properties of the judgment-debtor. It will be unreasonable, in my judgment, to think that it is so open. If the intention of the Legislature was that though it is open to the decree-holder to proceed by way of an application under Sub-rule (2) of Rule 49 of Order 21, he may still proceed in the other way, that, I think, would have been clearly mentioned. Quite clearly, if it is open to the decree-holder to proceed apart from an application under Sub-rule (2),; no decree holder would adopt the cumbrous method of Order 21, Rule 49 (2)--where first a charging order has to be obtained, and thereafter an order for appointment of receiver, as also an order for the sale can be made.

It will not be to the interest of any decree-holder to proceed in this roundabout way if it was open to him to ask straight of for sale of the property. The very fact that the Legislature provided for an application being made by the decree-holder for a charging order and provided that thereafter an order for sale may be made with the precautions that the application should be served on all the partners and that the partners would be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same, clearly shows that the Legislature intended to change the previous law that a' partner's interest was saleable property in execution of a decree just like any other property.

12. I have, therefore, come to the conclusior that under the law as at present enacted in Rule 49 of Order 21, Civil P. C., a decree-holder cannot proceed against the interest of a partner except in the manner laid down in Sub-rule (2) and the subsequent Sub-rules.

13. I would, therefore, allow the appeal, se1 aside the order passed by the learned Subordinate Judge and order that the application of objection under Section 47, Civil P. C. be allowed anc the present execution case be dismissed. The parties will bear their own costs here and below.

Guha, J.

14. I agree.


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