ORIENTAL BANK OF COMMERCE Vs. DHARA DEVI

JUDGEMENT

(1.) By this judgment, I propose to dispose of Civil Revision Nos. 1421 and 1422 of 1990, the facts being taken from the latter case.

(2.) The petitioner-Bank field a suit for recovery of Rs. 27,42,521.20 against the respondents and during the pendency of the suit, moved an application under Order 38, Rule 5 of the Civil Procedure Code for attachment of the property of the respondents before judgment. It was alleged in the application that the respondents had been granted various credit facilities against the mortgage deeds executed in favour of the petitioner in respect of land measuring 12 kanals 4 marlas and hypothecation deeds in respect of the raw material. It was further stated in the application that there was an apprehension in the mind of petitioner that the property of the respondents referred to above was likely to be pulled away, in case the attachment sought was not made.

(3.) Notice of the application was issued to the respondent and in the reply on behalf of respondent Nos. 3 to 6, it was pleaded that there was no intention to defeat the execution of the decree that might finally be passed against them. It was also stated that the respondents had already moved an application on August 14, 1989 giving an undertaking to the effect that they were not alienating any land, building or machinery of any kind during the pendency of the appeal. Respondent Nos. 1 and 2, however, filed a separate reply contesting the application filed by the plaintiff-Bank. They pleaded that they were not availing of the credit facilities offered by the Bank as they had creased to be the partners of the respondent-firm w.e.f. 15.8.1988 as it had been dissolved, and from that date the liability of the firm had been taken over by respondent Nos. 4 to 6 as a reconstituted firm. On this basis, it has been averred that the aforesaid two respondents stood absolved of all the liabilities including the liability towards the petitioner. The trial Court declined the application, holding that the apprehensions of the petitioner Bank were unjustified and as respondent Nos. 1 and 2 had ceased to be partners of the firm after August 15, 1988, and no case was made out for ordering the attachment against those respondents in view of Section 45 of the Indian Partnership Act (hereinafter called as 'the Act') which absolved them of any liability after the dissolution of the firm. Being aggrieved by the aforesaid order, the petitioner filed on appeal before the District Judge, Sangrur, who dismissed the same thereby upholding the order of the trial Court. The present petition has been filed against the order of the Courts below.