KARNATAKA HIGH COURT
Before :- S.B. Majage, J.
Civil Revision Petition No. 2940 of 2003. D/d. 11.2.2005.
For the Petitioner :- Mr. S.B. Pavin, Advocate.
Shivalingeshwara Oil Mill - Petitioner
Channaveerappa - Respondent
For the Respondent :- Mr. K.N. Patil, Advocate.
S.B. Majage, J. - In this petition filed under Section 115 of the CPC, the petitioners, who are L.Rs of deceased Managing Partner of an oil mill, have questioned the impugned order dated 5.9.2003 passed in Execution No. 6 of 1991, by which the objection taken by them regarding execution of decree against the property of the deceased has been rejected and answered in favour of the respondent-decree-holder.
2. It was vehemently argued for the petitioners that the property now sought to be sold has been held by the Court as personal property of the deceased and not of the firm; that the execution of the decree obtained against firm should have been proceeded against the property of the firm - oil mill and not against the personal property of deceased Mahalingappa Kori when, in fact, the firm is judgment-debtor and not said Mahalingappal Kori; that the firm - oil mill has not been property represented after the death of Mahalingappa Kori as no partner of the said oil mill has been brought on record though there are still three more partners of that firm - oil mill and that said oil mill is not working and its business is closed the hence, the execution of the property, which belongs to deceased Mahalingappa Kori is not proper. On the other hand, the learned Counsel for the respondent-decree- holder has supported the impugned order. Perused the records carefully.
3. The point for consideration is :
- "Whether the property of Managing Partner - Mahalingappa Kori (now deceased) could be proceeded with for the decree against the firm-oil mill or not ?"
5. At the outset, it may be noted that though it was argued for the petitioners that they have no objection for proceeding against the property of the firm- oil mill, they have not stated anywhere till now what is the property of the said firm, which could be proceeded with. So also, nothing is brought on record to show that the firm has been dissolved or, that there are three more partners other than the deceased Mahalingappa Kori, who is admittedly dead now.
6. Be that as it may, the mode of execution of a decree against a firm, is governed by Order 21, Rule 50 of the CPC, which is as under :
- "50. Execution of decree against firm.-(1) Where a decree has been pased against a firm, execution may be granted -
- (a) against any property of the partnership;
- (b) against any person how has appeared in his own name under Rule 6 or Rule 7 of Order 30 or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;
- (c) against any person who has been individually served as a partner with a summons and has failed to appear.
- Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of Section 30 of the Indian Partnership Act, 1932 (9 of 1932)".
7. That apart, admittedly, property sought to be proceeded within the execution was attached before judgment in the suit and that was not disturbed even when compromise was entered into and decree was passed. That attachment has not been raised so far nor questioned by the deceased during his lifetime or by anybody, including petitioners. So, even if the said property is taken and held as the personal property of the deceased, as long as the attachment of that property continues, it could be proceeded within the execution of the decree to which Mahalingappa Kori (deceased) was a consenting party. So, no infirmity could be found in proceeding against that property in the execution of that decree. Simply because Mahalingappa Kori was/is not a judgment-debtor and the firm is a judgment-debtor, that does not benefit his L. Rs. as it is not in dispute that the deceased represented the firm as its Managing Partner and consented for the decree passed therein.
8. Incidentally, it may be noted that though the petitioners submit no objection for proceeding against any available property of oil mill-firm, nothing has been brought on record to show that in fact, the said oil mill has any property against which the decree could be executed. Further, as noted already, the petitioners have not shown, how are those three partners other than deceased Mahalingappa Kori. Even if these aspects are kept aside, when the said property was attached before judgment for the purpose of satisfaction of the decree in question and is in subsistence and, when he was proceeded in execution of such a decree obtained against the firm, I do not find any merit in the objection of the petitioners. Simply because the deceased died and other three partners of the firm have not been impleaded a parties, the execution cannot be said to be not represented properly when execution was taken against the deceased and the petitioners are the admitted L. Rs. of the deceased. Further, it may be noted that the deceased could not have avoided the decree under execution and consequently, his L.Rs - petitioners also cannot avoid that decree, particularly when it is being executed against the property attached before judgment.
9. In the case of Topanmal Chhotamal v. M/s. Kundomal Gangaram and Others, AIR 1960 SC 388, the Supreme Court has considered said provision contained in Order 21, Rule 50(1) besides Order 30, Rule 3 and 6 of the CPC and observed thus :
- "The gist of the said provisions may be stated thus : A decree against a firm can be executed-(i) (against the property of the partnership (ii) against any person who has appeared in the suit individually in his own name and has been served with a notice under Rule 6 or 7 of Order 30 of the CPC,(iii) against a person who has admitted on the pleadings that he is or has been adjudged a partner, or (iv) against any person who has been served with notice individually as a partner but has failed to appear. The decree against the firm can be executed against the personal property of such persons"
In the result, the petition is dismissed with cost to the respondent- decree-holder.