ASSOCIATED MICA EXPORTS Vs. M K REDDY

JUDGEMENT

(1.) The petitioner in these two revision petitions is & firm. They obtained a money decree in O.S. No. 115/70 on the file of the Court of the Subordinate Judge at Gudur against the respondent -judgment-debtor and execution was laid under Order 21, Rules 43, 64 and 66 C. P. C. for attachment of kis seven-annas share in M/s. Sri Rajeswari Mica Mine at Thummalathalupuru in Rapur Taluk of Nellore District, valuing it at Rs.TWO lakhs, for realisation of the decree debt of a sum of Rs. 1,85,835 and odd. That execution-petition was dismissed at the SR Stage by the Lower Court on the ground that the Mica Mine cannot be attached. C.R.P. 4091/80 is filed against this order. Then he filed another E.P. seeking for attachment of interest in the partnership of the judgment-debtor, but. the same was rejected and dismissed observing that "the re-presentation do not call for a fresh consideration of the matter. The issue was already decided on hearing the counsel in the previous E.P. dated 12-2-80.........". As against the said order, C.R.P. No. 4092/80 has been filed. Thus, both the revision petitions are now before the Court.

(2.) Sri Venkatarama Reddy, learned counsel for the petitioner contends that though in the first instance, an application under Order 21, Rule 43, 64 and 66 was filed, in fact, the relief sought for was under Order 21 Rule 49 (2) C.P.C. and the Lower Court was not justified in dismissing the application. However, to cure the illegality, a fresh application was filed under Order 21 Rule 49 (2) C.P.C. specifically requesting to attach the interest in the partnership of the judgment-debtor and the Lower Court committed error in exercise of its jurisdiction in not ordering attachment of the share of the judgment-debtor in the partnership firm, Though the respondent was served, he neither appeared in person nor any vakalath was filed on his behalf. Therefore. I requested Sri S.A. Sarma, an Advocate, to assist the Court as Amicus Curiae and he has kindly accepted and rendered valuable assistance to this Court and this Court expresses its deep appreciation for the assistance rendered by him.

(3.) The point that arises in these revisions is whether the seven-annas share in the assets of the partnership of the judgment-debtor in M/s. Rajeswari Mica Mines at Thummalathalupuru is liable to attachment in execution of the decree in O.S. 115/70 obtained in the individual capacity of the judgment-debtor,