KARNATAKA THEATERS Vs. SHRISHAILAPPA

JUDGEMENT

(1.) THIS writ petition is filed challenging the order passed by the Executing Court appointing one M.A. Phanibhand, as receiver to ascertain the share of the judgment -debtor 1 in the firm M/s. Karnataka Theaters, Gadag and to take account by making enquiry regarding income of the judgment -debtor 1 and to recover and to deposit the amount realised in Court and to submit a report along with the amounts of the firm to the extent of judgment -debtor 1's 1/5th share. The decree -holder filed a suit against the judgment -debtor for recovery of Rs. 3 lakhs. The suit, after contest came to be decreed. After the decree, execution petition was filed for recovery of a sum of Rs. 4,20,471/ -. The judgment -debtor was a partner in a partnership firm M/s. Karnataka Theaters, Gadag, who are running a theater. The decree -holder sought for attachment of the judgment -debtor 1's 1/5th share in the said partnership firm and accordingly the charge was created in respect of the said 1/5th share. The said partnership firm filed an application under Order 21, Rule 58 of Civil Procedure Code, 1908 seeking rising of the attachment. The said application was contested and the application came to be dismissed.

(2.) AGGRIEVED by the said order, the firm preferred an appeal before the District Court in M.A. No. 53 of 2008. The Appellate Court held, if the decree -holder intends to take steps under Order 21, Rule 49(2) of CPC, notice had to be given to all the partners of the firm and then only execution proceedings can continue. As no such notice was sent to all the partners, the order was set aside and liberty was reserved to the decree -holder to file such an application. In the course of the said order it is categorically held that the judgment -debtor continues to be a partner of the firm and the contention of the firm that he ceases to be a partner was negated and the finding attained to its finality. Thereafter the decree -holder filed an application under Order 21, Rule 49(2) of CPC. The said application was allowed. Aggrieved by the said order the present petition is filed. Once it is established that the judgment -debtor is a partner in the firm, having 1/5th share and once the decree -holder has complied with the legal requirements as contemplated under Order 21, Rule 49(2) of CPC, the decree -holder is entitled to the relief sought for. That is precisely what the Executing Court has held. I do not see any illegality in the impugned order passed. Therefore there is no merit in this petition. Accordingly the petition is dismissed.