GOURI SANKAR SHEROFF Vs. CENTRAL HINDUSTHAN BANK LTD

JUDGEMENT

(1.) These two appeals have been heard together as they raise several common questions of law and fact. Second Appeal No. 643 of 1952 arises out of a suit brought by the respondent Ranjit Kumar Bose for a declaration that certain electrical goods that were attached in an execution case in execution of a money decree obtained by him against Asia Electric Works are in law liable to attachment and sale in execution of that decree and for setting aside the order passed by the executing Court in an application under Order 21, Rule 58 of the Code of Civil Procedure by the Asia Mechanical and Electrical Works Ltd.

(2.) It appears that two persons, Hrishikesh Mondal and Dasurathi Mondal, carried on business as partners in a firm in the name and style of Asia Electric Works. On 18-1-1947 three other persons, Gouri Sankar Sheroff, Baidyanath Sarkar and Atul Chandra Banerjee, were taken as additional partners and the firm as newly constituted continued business till the 31st day of October, 1947 on which date the two partners Hrishikesh and Dasurathi retired under a deed registered on that date. The three continuing partners, Atul Chandra Banerjee, Baidyanath Sarkar and Gouri Sankar Sheroff, however, continued business as partners under the same firm name Asia Electric Works. The Asia Mechanical and Electrical Works, Ltd. was incorporated as a public company limited by shares on 18-10-1947 Baidyanath, Gouri Shankar and Atul being among the directors and shareholders of this new concern. On 6-12-1947 the Asia Electrical Works as constituted by these persons transferred by deed the entire business of the firm except the stock-in-trade and furniture which, it was mentioned in this very doucment, had already been sold on that very date as per cash memo, dated 6-12-1947. The plaintiff Ranjit Kumar Bose having obtained a decree on the Original Side of this Court against "Asia Electric Works" for the balance of the principal and interest said to be due on a Hundi dated 18-1-1947 applied for execution of the same in the Court of the Munsif of Howrah, after the necessary certificate of non-satisfaction had been obtained from the High Court. Process was issued by the Munsif for the attachment of the movables belonging to the judgment-debtor, Asia Electric Works. In execution of this, it is said, the electric goods mentioned in the schedule to the plaint of the title suit brought by Ranjit Kumar Boss (out of which S. A. No. 643 of 1952 has arisen) were attached. A claim under Order 21, Rule 58 of the Code of Civil Procedure having been put in by the limited company, Asia Mechanical and Electrical Works, Ltd., the learned Munsif on a consideration of the evidence before him held that the petitioner, the Asia Mechanical and Electrical Works, Ltd., had interest and possession in the articles attached at the date of their attachment and directed them to be released from attachment. In the present suit Ranjit Kumar Bose prays that this decision may be set aside and it may be declared that these articles were liable to attachment and sale in execution of his decree.

(3.) The defence of the Asia Mechanical and Electrical Works, Ltd. was that under the terms of the assignment the limited company was liable only for certain liabilities of the partnership firm and the present plaintiif's dues were not one of them and the goods which were their property were not in any way liable to attachment and sale in execution of the plaintiff's decree.