BAI RUKHIABAI Vs. VADILAL PURSHOTTAMDAS AND CO

JUDGEMENT

(1.) This is an appeal by the plaintiff in this partnership suit against the order made by Mr. Justice Mirza on a summons dated July 9, 1928, in this suit directing payment to the applicants Vadilal Purshotamdas and Company, of the sum of Rs. 1,762-4-8 out of the moneys in the hands of the receiver in the present suit in priority over all other creditors of the firm of Haji Kahimtulla Abdul Rahim. These applicants had obtained is Suit No. 181 of 1920 an order for payment of this sum for costs against the above firm. The present suit No. 5384 of 1922 is a partnership suit for the winding up of the firm after its dissolution.

(2.) The main point we have to determine is whether the charging order made by the learned Judge on September 16, 1925, in the present suit in favour of the applicants is valid, and, if so, whether they thereby obtained priority for their judgment debt in Suit No. 181 of 1920 over other creditors of the partnership firm.

(3.) This point raises interesting and important questions of practice, during the discussion of which the arguments have travelled over a wide field. But it is particularly desirable to confine our decision to the facts of this particular case and to emphasise what those facts are. We have to deal with a partnership suit where after a receiver had been appointed and a preliminary decree passed for taking accounts etc, the applicants obtained the above charging order in their suit No. 181 of 1920 by reason of the fact that prior to the date of this partnership suit they had obtained the above order for coats against the partnership firm in suit No. 181 of 1920. It should also be noted that this charging order was obtained prior to the date of the final decree in the partnership suit, but that the application in suit No. 181 for execution under Order XXI, Rule 11, was not made until after the preliminary decree in the partnership suit, and that no notice was given under Order XXI, Rule 52, until after the final decree in the partnership suit which ordered payment of the balance in the hands of the receiver amongst certain creditors, not including the plaintiff No. 1.