PHULCHAND Vs. KANDHYA LAL

JUDGEMENT

(1.) This is an appeal from an order passed by the Execution Court under Order XXI, Rule 50, attaching the property of two young alleged partners, one of whom, Phul Chand is dead, so that the order has been made against his heirs, and the other of Whom Suraj Karan is still a minor, by reason of their being, as I understand the judgment, members of a joint Hindu family and, therefore, members of the firm which undoubtedly had been carried on by their father Mahadeo, Prasad and was afterwards undoubtedly actively carried on by his elder son Mangli Prasad on behalf of them as members of a joint family, if they continued joint, and on behalf of himself and any other person who was interested if they were separate. The case seems to me an important one and by no meant a simple one, although I take a very clear view of what our order ought to be. Unfortunately my brother and I do not agree in the view we take of the questions raised by the appeal, and according to the ordinary practice my judgment, when delivered, will be withdrawn and the appeal will have to be dismissed, as the appellants have failed to satisfy both members of the Bench. The detailed facts of the proceedings which led up to this application are fully and clearly set out in my brother's judgment, which I have had the advantage of reading, and it is, therefore, unnecessary for me to repeat them. I gather that the broad view on which he thinks this order ought to be supported is that grave injustice may be done to the decree-holder if he be precluded, as he would be precluded, if we allow the appeal, from proving that the appellants were partners. It seems to me that one answer to this is that, if injustice there be, it has been brought upon, the decree-bolder by the procedure which he has followed in his endeavour to execute the decree, not in my view by misfortune or by miscalculation, but by a deliberate effort in my view to overreach himself and get an order against the present appellants without running the risk of a decision against him under Order XXI, Rule 50, which was the appropriate procedure. In other words, he assumed everything in his own favour and applied for execution of the decree by an injunction and by obtaining an attachment of the appellants property without waiting for a decision that the appellants were partners in the firm, whether as members of a joint family or otherwise.

(2.) There is another answer. It may be that this is a hard case, but there are instances in which hard cases, if admitted, make bad law, and in my judgment this is one. We have to consider the effect of our decision upon the general law and the sort of future experiments which a decree-holder with a decree against a firm may make if we uphold this order.

(3.) By the attachment of the 18 August 1917 which was made by the decree- holder, the present appellants were forced in self-defense, if they ever wanted to save their property, to object. Their objection was that the property belonged to them and not to the firm. The order of the 6 of September 1918, which to my mind is the main difficulty in the way of the decree-holder in these present applications, exempted the share upon the present appellants objection and exempted it as though they were separated Hindus entitled each to one third of the property which had been attached, and held that the attached property had not been proved to be the property of the firm. I pause here for one moment to examine the converse case. If it had been found by the Court in that proceeding that the property was the property of the firm end that it was attachable in the hands of the then objectors as being members of the firm, what possible remedy bad the appellants, or what possible meats was there of, escaping from that order and from submitting to their property being sold unless they successfully appealed against the order?