PREM BALLABH KHULBE Vs. MATHURA DATT BHATT

JUDGEMENT

(1.) The appellant, the respondent and two other persons carried on business in partnership under the name and style of Nayagaon Firm. The respondent was the managing partner and was incharge of the partnership assets. The firm was dissolved and a suit was instituted by the appellant for the taking of the accounts of the dissolved firm. Eventually a final decree was passed in the suit in favour of the appellant against the respondent for Rs. 17,143/ 11/0 and Rs. 3,171/6 as on account of costs. The appellant applied for execution of the decree by arrest and detention of the respondent in prison. In his affidavit in support of the application, the appellant relied upon the grounds mentioned in clauses (a) and (b) of the proviso to S 51 of the Code of Civil Procedure 1908. At the hearing of the application those grounds were not pressed but his counsel relied upon the ground mentioned in Cl. (c) of the - proviso. By Cl. (c) of the proviso to .S. 51 the Court is empowered to order execution of the money decree by detention of the judgment debtor in prison if it is satisfied "that the decree is for a sum for which the judgment debtor was bound in a fiduciary capacity to account". The executing Court held that the provisions of Cl. (c) were satisfied, and issued a warrant for the arrest of the respondent. On appeal, the High Court of Allahabad set aside this order. The decree-holder now appeals to this Court under a certificate granted by the High Court.

(2.) On behalf of the appellant on attention was drawn to Ss. 9, 15. 18, 46 and 48 of the Indian Partnership Act 1932 and Ss. 88, 94 and 95 of the Indian Trusts Act 1882. and if was urged that the respondent as the managing partner of the firm was bound in a fiduciary capacity to account for the assets of the partnership in his hands and the decree against him must be regarded as a decree for a sum for which he was bound in a fiduciary capacity to account.

(3.) On the question whether a fiduciary relation exists between the partners the law is stated thus in Halbury's laws of England 3rd Edition. Vol. 38, Art. 1363, p. 820: