RATANSHI HIRJI BHOJRAJ Vs. TRICUMJI JIWANDA

JUDGEMENT

(1.) These three applications are directed against an order by which three connected claim cases under Order 21, Rule 58, Civil P.C., arising out of execution case No. 12 of 1937 in the Court of the Subordinate Judge of Dhanbad were allowed. The decree under execution was obtained by the petitioners against the opposite party No. 1 (a firm named Tricumjee Jivandas) and another individual. The subject of the attachment which gave rise to the claims was a preliminary decree for dissolution of partnership and for accounts obtained by the opposite party No. 1 and three others, namely opposite party Nos. 2 to 4, against certain individuals. This preliminary decree provided among other terms that after such accounting is completed a decree for the amount that may be found due for the plaintiffs l 1/2 annas share in the profits of the partnership properties and business will be drawn up against defendants 1 to 3 realizable from the assets of Goa Petha in their hands.

(2.) The decree further provided that the plaintiffs were to get full costs which were to be assessed after the accounting was over. In execution case No. 12 of 1937 in the Subordinate Judge's Court at Dhanbad when the petitioners attached the interest of the opposite party No. 1 in this preliminary decree, the opposite party Nos. 2 to 4 who were the remaining decree-holders under that decree objected that the preliminary decree was not liable to attachment. This objection has been allowed. The learned Subordinate Judge relying upon the decisions in Sailendra Krishna V/s. Harendra Kumar (1937) 24 AIR Cal 4 and Dhanraju V/s. Moti Lal Daga AIR (1929) Mad 641 has held that the preliminary decree in question is not a decree which is capable of being attached under the provisions of Order 21, Rule 53, Civil P.C.

(3.) The question whether the decree is attachable or not must be determined with reference to the terms of Section 60, Civil P.C. That Section lays down that with the exception of certain classes of properties specified therein all other property over which the judgment-debtor has a disposing power is attachable. Order 21, Rule 53 merely prescribed the manner in which the attachment of decrees is to be effected. The real question therefore is whether the preliminary decree can be said to be property over which the judgment-debtor has a disposing power. It has not been suggested that it comes under any of the exceptions in Section 60. It has however been contended by Sir M.N. Mukherji appearing for the opposite party that the right conferred by the preliminary decree is nothing more than a mere right to sue which under the provisions of Section 6, T.P. Act, is not assignable.