MUTHUKAMAKSHI CHETTIAR Vs. SHANMUGA NADAR AND ORS.

JUDGEMENT

(1.) THIS miscellaneous appeal is filed by the decree -holder who obtained his decree in O.S. No. 207 of 1949 against seven defendants, personally against defendants 1 and 2 and as against other defendants to the extent of the family properties in their hands. The decree was obtained in March, 1950. In execution of that decree the decree -holder filed an E.P. No. 488 of 1952 to attach the 2nd defendant's half share in a partnership called " Nagarathnam and Sons." According to the decree -holder, that business was carried on by the 2nd defendant and one Kadarkari Nadar in partnership. The latter has been impleaded as the 8th respondent in the execution petition. It is obvious that he is not a necessary party to the execution. But I am told that because notice has to go to the other partners under Clause (4) of Rule 49 of Order 21 in case the assets of the partnership have to be charged Kadarkari Nadar was impleaded as a party to the execution proceedings. It is only that person who is the contesting respondent in this appeal and in fact one of the arguments of his learned Counsel was that the second appeal was incompetent. It must be conceded that so far as he is concerned the second appeal must be incompetent because he cannot be considered to be a party to the decree. It must be understood that he is impleaded as a party to the execution petition only because of the requirements of Clause (4) of Rule 49 that a notice has to issue to the other partner so that on that notice he might, if he so desires, exercise the option given to him under Clause (3) of the said rule.

(2.) IT is rather surprising that the learned Judges of the Court below should have thought fit to dismiss the execution petition altogether without any investigation as to whether the 2nd defendant was a partner in the business. It is not as if the partnership assets of the judgment -debtor are exempt from being proceeded against. No doubt Rule 49, Clause (1) prohibits the attachment and sale of property belonging to a partnership otherwise than in execution of a decree obtained against the partnership or against the partners in the firm as such. But Clause (2) of that rule lays down the procedure for reaching such assets in execution of a decree obtained against a person who might be a partner in a partnership business, that is, either by issuing a charging order or appointing a receiver. It is apparent that the Courts below should have followed that procedure and should not have dismissed the execution petition as if the partnership assets of a judgment -debtor are completely exempt. Learned Counsel for the respondent contended that such procedure is not permissible before the decree -holder files a suit for declaration that the judgment -debtor is a partner of that business. I am unable to accept that contention because no decree -holder is bound to file a suit for declaration as to the judgment -debtor's assets even before he seeks attachment of such assets and if any suit should be filed, I am afraid that such suit may not be maintainable at all.