NENSUKHGAVRI Vs. RAJABALLY MULLA ABDUL KADAR

JUDGEMENT

(1.) [His Lordship after stating the facts of the case as above continued :] This is a chamber summons taken out by the plaintiff in Suit No. 613 of 1925 for an order that the receiver appointed in Suit No. 440 of 1925 do pay to the plaintiffs the sum of Rs. 23,406-3-0 and costs of the suit when taxed and further interest on judgment till payment out of the funds in the hands of the receiver belonging to the partnership firm of Mulla Abdulla Kadar Mulla Ebrahim Kachwalla in priority to the claims of the other creditors of the said partnership firm and for costs of the summons.

(2.) It appears that the charging order in favour of the plaintiffs is prior in date to the other charging orders obtained herein. In the course of these proceedings the plaintiffs, after they had proved their claim before the Commissioner, seem to have acted on the assumption that in respect of their claim they were entitled to rank pro rata only along with the other creditors of the partnership. The change in their attitude was probably due to the fact that recently I have had to consider the nature and effect of such charging orders against partnership assets, and have held, in my judgment, that such charging orders were not justified, but could only be regarded as substitutes for notices under Order XXI, Rule 52, and that if they came under that description the first attaching creditor of the assets in the hands of the receiver would have priority against the subsequent attaching creditors.

(3.) The summons is opposed by the remaining creditors of the partnership-both those who have obtained charging orders or notices under Order XXI, Rule 52, and those who have not obtained any such as well as those who have not yet obtained any decrees in respect of their claims They all contend that in the events that have happened the Court should distribute the assets of the partnership among the creditors rateably.