VELATHAL Vs. R K PONNUSAMY

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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, property 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).