Velathal and Another vs R.K. Ponnusamy and Another

Srinivasan, J.—These revisions are directed against the orders of the executing Court dismissing the petitions filed by the petitioners for

proceeding against the interest of the first respondent in the partnership firm by name M/s. Prabhu Motor Service. The second respondent is the

other partner.

The petitions are filed by the petitioners under the provisions of Order 21, Rule 49(2) of the Code of Civil Procedure. A decree is obtained

against the first respondent in his individual capacity, but described as proprietor of Prabhu Motor Service. Learning that the first respondent is a

partner of the firm, the decreeholders are trying to proceed against the interest of the first respondent in the partnership firm by taking proceedings

under Order 21, Rule 49(2), C.P.C.

The Court below has dismissed the petitions by relying on the Judgment of the Punjab High Court in Firm Balia Ram Raj Kumar v. Union of

India AIR 1952 Pun 340. The Court below has taken the view that Rule 49(2) will apply only if a decree is obtained against a person in his

capacity as a partner or a decree is obtained against the partnership firm.

The view taken by the Court below is erroneous. Sub-rule (1) of Rule 49 is to the effect that excepting as provided by the rule, properly

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. Sub-rule (1) itself makes it clear that a procedure is prescribed in the rule for attaching or selling the property of a firm in

execution of a decree other than a decree passed against the firm or against the partners in the firm as such. The provision is contained in Sub-rule

(2). Under Sub-rule (2) what can be proceeded against is only the interest of the judgment debtor in the partnership property and profits. This

Sub-rule (2) will apply only in cases in which a decree is obtained against an individual, who happens to be a partner in a firm. It will be fallacious

to say that Sub-rules (1) and (2) cover the same situation, in view of the express language contained in Sub-rule (1).

This is the view taken by N.S. Ramaswami, J. in Mrs. P. Subbiah alias Dhanalakshmi Subbiah Vs. Venkatathiru Muthuraja and Others, . Of

course, this question did not arise in that case. But, the learned Judge made observations dealing with this question and taking a view different from

that of Yahya Ali, J. in Rao Sahib P.V. Rangayya Vs. Tatavarty Nagapotha Rao and Others, . N.S. Ramaswami, J. referred to the law

summarised by Mulla in his 13th Edition of the CPC and agreed with the learned author for the reasons, which I have already given and I agree

with the opinion expressed by N.S. Ramaswami, J. in the above case.

In Muthukamakshi Chettiar v. Shanmuga Nadar AIR 1958 Mad. 290 Ramaswami Gounder, J. had again referred to the principles of Order 21,

Rule 49, C.P.C. Though the question which is considered by me did not arise before the learned Judge, the observations made by him would

indicate that he was also taking the same view, which is expressed herein. The learned judge observed:

It is not as if the partnership assets of the judgment debtor are exempt from being proceeded against. No doubt Rule 49, Clause (1) prohibits the

attachment and sale of property belonging to a partnership otherwise than in execution of a decree obtained in partnership or against the partners in

the firm as such. But Clause (2) of that rule lays down the procedure for reaching such assets in execution of a decree obtained against a person

who might be a partner in a partnership business, that is, either by issuing a charging order or appointing a receiver.

Hence, the orders of the Court below dismissing the petitions filed by the petitioners are set aside and the execution petitions are remanded to

the file of the Subordinate Judge, Udumalpet and he is directed to pass appropriate orders under Order 21, Rule 49, C.P.C. It is open to the first

respondent herein to raise such objections as are available under the law on the merits of the petitions filed by the petitioners. There will be no

order as to costs in these revision petitions.