BARABONI COAL CONCERN LTD Vs. RAM CHANDRA MARWARI

JUDGEMENT

(1.) These two miscellaneous appeals and the civil revision application arise out of two applications for the execution of a decree obtained by the respondent, Ramehandr a Marwari, against the appellant, the Baraboni Coal Concern Ltd. One Economic Coal Co. Ltd., (now defunct) worked among others a colliery called Ganeshpur. Half of this coalfield belonged to the respondent-decree-holder and the other hall to one Mr. Forbes. The latter sub-leased his half to the Economic Coal Co. Ltd., and the former entered into a partnership with that company in respect of the other half, and thus the company worked the whole of the Ganeshpur coalfield. This company went into voluntary liquidation, and the liquidator amalgamated it with the Baraboni Coal Concern Ltd., with effect from 1 April 1926. (The effect of this amalgamation will be dealt with later.) The decree-holder, Ramchandra Marwari, instituted a suit, No. 54 of 1927, against the Economic Coal Co. Ltd., the Baraboni Coal Concern Ltd., and others for dissolution of the partnership and accounts. The suit was decreed and the amount due to the plaintiff was ascertained at a sum of over Rs. 88,000. The order portion of the decree runs thus: For the amount that would be found due to the plaintiff on rendition of account defendants 1 and 2 (that is the Economic Coal Co. Ltd., and the Baraboni Coal Concern Ltd.,) would be liable to the extent of the assets of the Economic Coal Co. in their hands.

(2.) This is the decree under execution. In one of the two executions the decree, holder attached a decree obtained by (1) the Baraboni Coal Concern Ltd., (2) Chandanmal Indra Kumar, the petitioner in the civil revision application, and another, in Suit No. 66 of 1930, against the proprietor of one C.M. & Co. for an encroachment by the latter on the coal lands of the Phularitand Coal Co. Ltd., which company among others had also been amalgamated with the Baraboni Coal Concern Ltd. Two objections were preferred against this attachment. One was by the Baraboni Coal Concern Ltd., and was to the effect that the decree which was attached was not a part of the assets of the Economic Coal Co. Ltd. but was the property of the Phularitand Coal Co. Ltd. and was not therefore attachable in execution of the decree of the decree holder-respondent. The second was a claim under Order 21, Rule 58, Civil P.C. made by Chandanmal Indra Kumar, who alleged that he was also a decree-holder of the attached decree and that as he was under no liability to pay the decree of the respondent, Ram, chandra Marwari, the decree could not be attached.

(3.) The objection and the claim were allowed by the learned Subordinate Judge. The decree-holder preferred an appeal and a civil revision application to this Court (Miscellaneous Appeal No. 107 of 1934 and Civil Revision No. 450 of 1934). These were heard by a Division Bench (Agarwala and Varma, JJ.) before which it was admitted on behalf of the Baraboni Coal Concern Ltd., a respondent in the miscellaneous appeal, that if they are unable to account for any part of the assets of the Economic Coal Co. Ltd., which passed into their hands at the amalgamation, they are personally liable to satisfy the decree.