RAJA THEATRE COIMBATORE Vs. SELVAM FINANCIERS

JUDGEMENT

(1.) The second respondent-garnishee in I.A. No. 1167 of 1980 in O. P. No. 1453 of 1980 on the file of the Sub-Court, Coimbatore, is the appellant in this civil miscellaneous appeal. The petitioner in the said I.A. No. 1167 of 1980 is the first respondent in this civil miscellaneous appeal. The first respondent in the said application is the second respondent in this civil miscellaneous appeal. For the sake of convenience, the parties are referred to in this judgment as per their array in the Interlocutary Application.

(2.) The petitioner filed the application I.A. No. 1167 of 1980 in O.S. No. 1453 of 1980 on the file of the Sub Court, Coimbatore under O. 38, Rr. 5 and 11(a) read with O. 21, R. 49 and O. 40 R. 1 and S. 151, C.P.C., to call upon the first respondent to furnish sufficient security, failing which to order attachment before judgment of the share, interest, profit, credit and deposits to him in the partnership firm M/s. Raja Theatre at Coimbatore. The case of the petitioner in I.A. No. 1167 of 1980 is as follows :- O.S. No. 1453 of 1980 has been filed by the petitioner-firm against the defendants for the recovery of a sum of Rs. 1,31,600/- together with interest at 18% per annum. The first respondent in I.A. No. 1167 of 1980 and his wife are the defendants in the said suit. The defendant are heavily involved in debts having borrowed moneys from various financiers throughout Tamilnadu. The defendants have disposed of the negatives and exhibition rights of the various films and secreted all the sale proceeds. The defendants have disposed of their valuable immovable properties. The immovable property viz., the house bearing door No. 83/11C Barathi Park Road, Coimbatore, standing in the name of the second defendant in the suit has been mortgaged and the equity of redemption is practically worth nothing. The first respondent owned 30% share in the partnership firm M/s. Raja Theatres. The other partners of the said firm are one Baskaran, the elder brother of the first respondent Viswanatha Chettiar and his sons Ravindranath and Sekar. The first respondent has been making attempts to dispose of his interest in the said partnership firm. Unless the first respondent's interest as partner in the properties and profits of the firm M/s. Raja Theaters are attached, the first respondent is likely to enter into some arrangement with the other partners of the said firm for transferring the same to them or to some third parties. On 31-10-1980 the lower Court passed an interim order in I.A. No. 1167 of 1980 directing interim attachment of the interest and share of the first respondent in the partnership firm M/s. Raja Theatres and the attachment was effected by pro-order on 15-11-1980. The first respondent remained ex parte in I.A. No. 1167 of 1980.

(3.) The second respondent filed a counter contending as follows :- The first respondent had no interest in the partnership firm, M/s. Raja Theatres. Even long prior to the filing of the suit the first respondent ceased to have any interest in the partnership firm. Even otherwise the application for attachment is not maintainable in view of the fact that the partners of the firm have not been made parties in the garnishee proceedings. As per the agreement dated 1-3-1979 among Visvanatha Chettiar and his two sons on the one hand and the first respondent on the other the assets and liabilities of the first respondent in the partnership firm are to be taken over by Viswanatha Chettiar and his two sons in lieu of their discharging the debts due by the first respondent as a partner of the firm. The petitioner is not entitled to the relief in the application, because, the first respondent has no interest whatsoever in the firm M/s. Raja Theatre on the date of the filing of the application as well as on the date of the order of attachment.