D V KRISHNA MURTHY Vs. P VISWANATH

JUDGEMENT

(1.) This revision is directed against the order passed by the District Munsif, Hindupur in I. A. No. 189/89 in O.S. No. 24/ 89. The suit was filed against the firm and its partners. Pending disposal of the suit, an application was filed under Order 38, Rule 5, C.P.C., to attach the properties of one of the partners i.e., the third defendant, who is the petitioner herein. After counter was filed, the lower court ordered attachment before judgment. Aggrieved by the said order, the present revision is filed.

(2.) Sri R. V. Prasad, learned counsel for the petitioner contended that in case the partnership firm falls in debts, the properties of the individual partners cannot be attached before judgment. In support of the above contention, he relied upon S. 49 of the Indian Partnership Act, which reads as follows:-- "49. Payment of firm debts and of separate debts:-- Where there are joint debts due from the firm, and also separate debts due from any partner, the property of the firm shall be applied in the first instance in payment of the debts of the firm, and, if there is any surplus, then the share of each partner shall be applied in payment of his separate debts or paid to him. The separate property of any partner shall be applied first in the payment of his separate debts, and the surplus (if any) in the payment of the debts of the firm."

(3.) In view of the above provisions, S. 49 cannot come in aid of the petitioner herein, who is 3rd defendant, to contend that before the decree has been passed, the question of attaching the property does not arise.