HARI CHARAN BAJORIA Vs. MANAKMALL LODHA

JUDGEMENT

(1.) This is an appeal from an order dismissing an application by the appellant for release of certain shares in a joint stock company from attachment at the instance of one Manakmall Lodha who obtained an award for Rs. 1,41,000.00 against Kedarnath Bajoria, father of the appellant. This award was amended after the death of Kedarnath Bajoria so as to be effective against the appellant and respondents other than Manakmall Lodha as heirs and legal representatives of the said deceased.

(2.) The facts leading to the making of the application are as follows: Manakmall Lodba and Kedarnath Bajoria entered into an agreement of partnership in 1947 for an enterprise in purchase and sale of certain timber. The parties were to advance equal amounts by way of capital and have equal shares in profits and losses. Lodha filed a suit in this Court in the year 1951 claiming a dissolution of the partnership business, a decree for Rs. 51,186/- being his contribution of the capital amount of Rs. 50,000/- plus interest less the amounts paid from time to time, accounts and enquiries as to his share of the profits in respect of the partnership as also accounts and enquiries of the dissolved partnership. Kedarnath Bajoria filed his written statement on August 16, 1951 denying the correctness of the particulars set out in the plaint and stating that a sum of Rs. 1003/8/3 was due and payable from him to Lodha in respect of the said partnership business. Annexed to the written statement was a statement of account showing how that figure was arrived at. The defendant further stated that pre-per accounts in respect of the business had been tendered to the plaintiff. The suit was compromised on the basis of terms of settlement put in on February 17, 1959. By this the parties were declared to have eight annas shares each in the profits and losses of the business and Mr. D.C. Sethia, a member of the Bar, was appointed special referee to take the accounts and decide the issues included in the terms. Issue 5(a) was whether Rs. 1003-8-3 was the only sum due and payable by the defendant to the plaintiff and issue 5(b) was whether Rs. 51,186-8-0 was due and payable as claimed by the plaintiff. By an order dated March 3, 1960 this reference was superseded and one Pannalal Bafna was appointed the sole arbitrator to adjudicate upon the disputes. Bafna made his award on August 17, 1960 whereby he directed Bajoria to pay Rs. 1,41,000/-in full and final settlement of all the partnership dealings arid accounts between the parties. Bajoria preferred an application for setting aside the award in November 1960. Before that application could be disposed of he died on February 4, 1961 leaving a will executed on the same date whereby he appointed his sons Biswanath Bajoria and Haricharan Bajoria (appellant herein) as his executors, Biswanath and Haricharan made an application for substitution of their names in place of Kedarnath in the proceedings for setting aside the award on April 4, 1961. The award holder Manakmall Lodha made a similar application for substitution of the widow and all the sons and daughters of Kedarnath Bajoria. On July 3, 1961 an order was made by this Court substituting the widow and all the sons and daughters as heirs and legal representatives of Kedarnath Bainria, Haricharan and Biswanath were further described as "alleged executors and trustees to the estate of the deceased." On August 1, 1961 Haricharan and Biswanath filed an affidavit of assets alleged to have been left by the deceased. A copy of the same forms annexure 'B' to the petition. According to this the total assets of the deceased was Rs. 3868.02 nP. against liabilities shown at Rs. 10,310.35 nP. The application for setting aside the award was dismissed on May 11, 1962 and simultaneously therewith a decree was passed in Suit No. 2528 of 1951 in terms of the award. On May 14, 1963 the decree-holder levied attachment on certain furniture and 200 shares of Shiva Jute Bailing Private Limited numbering 14001 to 14100 and 14901 to 15000 standing in the name of Haricharan Bajoria.

(3.) On May 21, 1963 the appellant took out summons supported by a petition for investigation of the claim put forward by him to the properties attached and release of the same from the said attachment. The case of the appellant made out in the petition is as follows: -- There was a partition between Kedarnath Bajoria and other members of his family including the appellant in the year 1959. The properties allotted to the various members of the family are shown in annexure "A" to the petition (deed of partition). The shares which form the subject-matter of the attachment are included in the sixth schedule to the deed of partition which contains a list of properties allotted to the appellant Haricharan Bajoria and others described as fifth parties to the deed. Kedarnath Bajoria died leaving a will of which probate was taken by the Appellant and Biswanath Bajoria on March 30, 1962. As the partition preceded the award, the shares of the Joint Stock Company could not be attached in the hands of the appellant.