Decree against firm - Can be executed against partner individually who had appeared in suit individually - Personal property of such partner attached in execution of decree against firm

KARNATAKA HIGH COURT

Before :- S.B. Majage, J.
Civil Revision Petition No. 2940 of 2003. D/d. 11.2.2005.

Shivalingeshwara Oil Mill - Petitioner
Versus
Channaveerappa - Respondent

For the Petitioner :- Mr. S.B. Pavin, Advocate.
For the Respondent :- Mr. K.N. Patil, Advocate.

ORDER

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 ?"
4. It is not in dispute that the respondent-decree-holder brought suit for recovery of Rs. 26,635/- against Mahalingappa Oil Mill - judgment-debtor by its Managing Partner namely, Mahalingappa Kori; that a consent decree was passed in that suit and land Sy. No. 6-A/1-+A, which was under attachment before judgment in that suit was kept in tact for the satisfaction of that decree; that the amount of the decree was not paid and as such, execution was taken in E.P. No. 6 of 1991; that objections were taken initially on the ground that said Mahalingappa Kori was a 'debtor' as defined under the Karnataka Debt Relief Act, 1976 and consequently the debt stood discharged under that Act; that the order of the executing Court overruling that objection was confirmed by this Court in revision; that thereafter, on 7.1.1998, said Mahalingappa kori died; that then his wife and children-present petitioners were allowed to be brought on record by the executing Court, but that was challenged before this Court; that by its order dated 5.12.2002 in CRP No. 4372 of 2002, this Court did not interfere with that order and when the matter went back to the executing Court, the property under attachment before judgment in that decree was sought to be proceeded with by the respondent-decree-holder and it was at that time, objection was taken on the ground that said property, being the personal property of deceased Mahalingappa Kori, could not be proceeded with and as said objection was overruled/rejected by the executing Court, the petitioners are before this Court. In the light of said admitted facts, the matter requires to be considered.
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)".
In view of said clear provision, where a decree has been passed against a firm, execution may be granted even against the person, who 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. It is not in dispute that the deceased Mahalingappa Kori was shown and served as Managing Partner of the firm and it was he, who entered into compromise with the respondent-decree-holder and decree came to be passed against the firm. It is not the case of the petitioners that the deceased did not appear in his own name or the pleadings in the suit did not show him as a partner or, that at any time he disputed his capacity as Managing Partner of the said firm. It is also not their case that there was no service of notice on the deceased in accordance with law, including Rule 3 of Order 30 of the CPC. So, as per Section 50(1)(b) of the CPC, the decree under execution could be proceeded against the deceased Mahalingappa Kori, Managing Partner.
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"
10. In view of the above and the clear legal position that the decree could be executed against the personal property of the deceased, a noted already, the objections taken by the L.Rs on various grounds referred to already, are not sustainable. Neither, there is any perversity nor illegality nor error of jurisdiction in the impugned order to invoke Section 115 of the CPC. Before parting with the case, it may be noted that, according to the petitioners, the respondent-decree-holder was paid a sum of about Rs. 25000. But, that cannot be a ground set aside or invalidate the impugned order. Thus, considered from any angle, the petition requires to be dismissed.
In the result, the petition is dismissed with cost to the respondent- decree-holder.

Petition dismissed.
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