TMI Blog1946 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... y view referred them to a Division Bench for disposal. It was, however, overlooked at the time that no Division Bench even if, it disagreed with the decision of this Court would be competent to overrule it. We accordingly forward these cases to the Honorable Chief Justice with a recommendation that they may be placed before a Full Bench for disposal. 2. The question of abatement also arises in these cases, but unfortunately even on that matter there is a clear divergence of authority between the different Counts in this country and we accordingly consider it but proper that that matter be also dealt with by the same Full Bench. JUDGMENT 3. Cornelius, J.--This judgment deals with two matters, namely, Execution second Appeal No. 426 of 1940 [Firm Ajudhia Prasad Lachhman Dass v. Sham Sunder, etc.] and civil Revision No. 252 of 1940 [Firm Ajudhia Prasad Lachhman Dass v. Sham Sunder, etc.] These arise out of proceedings in the Court of the Commercial Subordinate Judge, First Class, Delhi, in execution of several decrees passed by Courts at Agra (United Provinces) against one Ram Pershad, a partner in the firm Ajudhia, Prasad Lachhman Dass. For the purposes of these cases the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was movable property was erroneous, and O. 21, R. 78, Civil P.C. had been wrongly applied. The price fetched at the auction was stated to be inadequate, and it was said that the true market value of Ram Pershad's interest was ₹ 80,000 Reference was also made to an irregularity in the conduct of the sale, namely, that it was not held on the date originally fixed but on an adjourned date which was incorrectly described as Friday, 11th May, the correct day of the week being Thursday. 5. The jurisdiction of the Commercial Subordinate Judge in respect of Sham Sunder's execution was also challenged. His action in calling for this execution from the Court of Sardar Kartar Singh was stated to be an excess of power, on the grounds, firstly that only the District Judge could transfer the execution from one Subordinate Judge's Court to another, and secondly, that the provisions of S. 63, Civil P.C. had no application in the case for the reasons that a charging order under O. 21, R. 49, Civil P.C., did not constitute an attachment. The learned District Judge upheld the finding that the sale was of movable property. As regards the error in publishing the date of the sale, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of O. 21, R. 90, Civil P.C. S. 47 of the Code could not be availed of in respect of the applications and, therefore, no second appeal was competent. Accordingly, the cases came up before a Division Bench composed of Din Mohammad and Mohammad Sharif JJ, on 23rd January 1946. The Division Bench felt that even if they disagreed with the earlier decision of this Court, they were not competent to overrule it, and they accordingly recommended to the Hon'ble the Chief Justice that the cases be placed before a Full Bench for disposal. They further recommended that the question of abatement should also be dealt with by the Full Bench. We have been assisted at the hearing by the able arguments of Mr. Jiwan Lal Kapur for the appellant-petitioner and R.B. Lala Badri Dass for the respondents. 7. Mr. Jiwan Lal Kapur in the course of his arguments raised the question of the jurisdiction of the Commercial Subordinate Judge in respect of Sham Singh's execution which he had called up from the Court of Sardar Kartar Singh. The grounds on which the jurisdiction of the Commercial Subordinate Judge was challenged were the same as were presented before the learned District Judge. The judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... great strictness, so that even though for various purposes of O. 21, Civil P.C, a' charging order under R. 49 of that Order was in the same position as an attachment, or was deemed to be an attachment, nevertheless, since the Code describes it not as an attachment but as a charging order, it should be held not to satisfy the requirements of S. 9, Cl. (e), Presidency Towns insolvency Act. The decision in no way militates against the acceptance of such a charging order as being an attachment for the purpose of other laws, e.g., O. 21, Civil P.C. The word 'attachment' appears as the heading of a sub-division of part II, Civil P.C, comprising Ss. 60 to 64 which lay down inter alia, the kinds of property liable to attachment Again the words Attachment of property appear as the cross head above Rr. 41 to 57 of O. 21 of the Code, which make specific provision varying according to the nature of the property for attachment, in relation to agricultural produce, moveable property other than agricultural produce, debts other than negotiable instruments, shares in a corporation, shares immoveable, salaries and allowances, partnership property, Negotiable instruments decrees, and im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged. On this part, of the case, it remains to consider whether the Commercial Subordinate Judge had power to make this order. In my opinion, he certainly had such power. The point is covered by decisions of Division Benches of the Madras and Bombay High Courts. In [Venkata Reddi v. Doredha Sons] ('39) 26 A.I.R. 1939 Mad. 169 : I.L.R (1939) Mad. 248 : 180 I.C. 44 a Division Bench of the Madras High Court was dealing with a case in which a Subordinate Judge called up execution proceedings from an inferior Court, namely, that of the District Munsiff, and proceeded to sell attached property. It was contended inter alia that the Subordinate Judge had no jurisdiction to call up the execution from the inferior Court and, therefore, the sale was without jurisdiction. The question was examined in relation to the language of Ss. 63 and 38, and it was held that the Subordinate Judge's proceedings were valid and that he had jurisdiction to conduct the sale. The basis of the decision was that as s.63 gives certain powers to the Subordinate Judge which art otherwise only derivable from the Court which passed the decree under the provisions of S. 38, and thus overrides S. 38, the lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shad , and did not even describe the immovable property owned by the partnership fully. The documents relevant to this allegation have been carefully examined. There is upon the record a copy of the proclamation issued under O. 21, R. 66, Civil P.C. which was plainly the office copy and bears upon it the report of the officer who effected service as required by law. It is obvious that the most important feature of this document is that provided by these reports. As for its other contents it is not of equal importance with the copies that were displayed or affixed or delivered as required by law. The charging order made by Sardar Kartar Singh in the case appears to be correct. It is dated 13th January 1939, and was made after the service on the judgment-debtor and the other partners in the firm, of whom one, namely, Lachhman Dass was present and declared that he had no objection to the charging of Ram Pershad's interest. Thereupon, Sardar Kartar Singh directed that the share of the judgment-debtor in the firm in question should be charged with the amount of the decree. The order goes on to say that the decree-holder wished to bring this share to sale, and contains directions r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of bidders attended. The price fetched was high, and we may be assured that no substantial loss was caused to the judgment-debtor, who is contesting the sale, through any defect of price due to insufficient publication among likely bidders, for the auction-purchaser is a near relation of his. 15. The next question for examination is that which mainly occasioned the reference of this case to a Full Bench, and it may be conveniently formulated as below: 16. When the interest in a partnership of a person who is a partner is dealt with under O. 21, R. 49, Civil P.C., is that interest to be regarded as immovable property, in case where the partnership assets include immovable property? This was the precise question before a Division Bench of this Court in [Barkat Ram v. Bhagwan Singh] (88) 25 A.I.R. 1938 Lah. 65 : 177. I.C. 116 and the learned Judges of the Division Bench after considering the views of the learned commentator Bindley in his book on Partnership, and examining a large number of authorities came to the conclusion that the question was not free from difficulty, and could not be answered with certainty but on the whole they were disposed to think that an intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the real and personal representatives of a deceased partner, be deemed to be personal and not real estate, unless indeed such conversion is inconsistent with the agreement between the parties. Although the decisions upon this point were conflicting, the authorities which were in favour, of the above conclusion certainly preponderated over the others, and all doubt upon the point has been removed, by the Partnership Act, 1890, which contains the following section (here S. 22 is reproduced). 21. It would appear that the enactment of S. 22, Partnership Act, 1890, did not BO much bring about a change in the taw as clarify the law and place it beyond doubt. There is no corresponding section in the Indian Partnership Act, 1932, which is based in the main on the English Partnership Act, 1890. If the two Acts be construed in pari materia, it might at first sight appear as if the omission in the Indian Act is to be regarded as intentional, and consequently that the effect produced by the inclusion of S. 22 in the English Act has been designedly excluded from the law in India, but this would not necessarily involve holding that in the given circumstances the interest of a partner woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artners the property of the firm shall be held and used by the partners exclusively for the purposes of the business. This precludes the possibility of any of; the partnership property being, or being deemed to be, separate property of any partner, so long as the partnership subsists. In other words, while the partnership is in existence, no partner; can point to any part of the assets of the partnership as belonging to him alone. Section 32 provides for retirement of a partner from the, partnership, but it is noteworthy that the Act makes no provision for the separation of the share of a retiring partner, and the intention may be that this shall be determined by agreement between the partners. Since every partner has a right to have the entire property of the partnership applied in payment of the debts and liabilities of the firm, in order to discharge himself from the liabilities attaching to him as partner, it follows that no part of the partnership property can be separated and appropriated to a purpose which is not a purpose of a partnership as such, without the consent of all the existing partners. It is only in the case of a minor partner dealt with in s. 30, sub-s. (i) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s section make it quite clear that the rights of the transferee are on a distinctly lower plane than those of his transferor. Such a transferee is not entitled to interfere in the conduct of the business or to require accounts or to inspect the books of the firm, and he must be content to receive a share of profits calculated on the basis of accounts agreed to by the existing partners, which he is bound to accept. It is only if the firm is dissolved that he is entitled as against the remaining partners to receive the share of the partnership property to Which his transferor was entitled as well as to ask for an account, and that only from the date of dissolution. It is true that S. 29 deals only with voluntary transfers, and does not in terms apply to a transfer under O. 21, R. 49, Civil P.C. but the omission may in my opinion be reasonably supplied by application thereto of the principles contained in S. 29. There appears to be no published decision on this point by any Indian High Court, and in the circumstances, it is permissible to refer to the reasoning of, the Court of Appeal in the case [ Brown, Janson Co. v. Hutchinson Co. ] (1895) 2 Q.B. 126 where s. 31, English Partne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t takes concrete shape. Up to that his sole right is to receive, a share in the profits of the partnership in the running of which he has no share whatever he is not permitted even to question the (sic)ness of the amount offered, to him. In an extreme case it is conceivable that the entire partnership assets may be devastated under his very nose and he will be powerless to prevent the injury to has rights. He cannot even move for dissolution of the firm himself. A reference as S. 44, cl. (e), Partnership Act, will show that is a case where the share of a partner has been charged or sold under O. 21, R. 49, Civil P.C. any of the remaining partners may sue for dissolution, but the right is not conferred upon the transferee of Such share. Moreover, as has already been seen, dissolution involves liquidation of the entire assets, and the transferee will even in such a case, receive nothing bill liquidated assets as his share. 28. It would seem obvious in view of the above reasons that the answer to the question foulard at the commencement of this discussion is in the negative in other words, when the interest in a partnership of a person who is a partner is dealt with under O. 21, R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was evidence to show that Sadaram was a partner in the firm and that the mortgages in suit had fallen to his share. On the point of the admissibility of the letters the two learned Judges disagreed and a considerable portion of the judgment recorded by each is devoted to the discussion of the question of the nature of a share in partnership property. These remarks (I say so with all respect) must be regarded as obiter, for the simple reason that the locus standi of the plaintiff qua the mortgages was firmly established on the basis that his father was a partner in the firm, and that at the partition of the partnership assets, the mortgages in dispute fell to his share. 31. [Venkataratnam v. Subba Rao] ('39) 26 A.I.R. 1989 Mad. 884 : I.L.R. (1939) Mad. 971 :188 I.C. 631 was a case of a release deed by a retiring partner, whereby in consideration of a sum of ₹ 2100 he relinquished his share in the partnership, part of whose assets consisted of immovable property. The Division Bench of the Madras High Court which decided the case held that the document did not require registration, as, the release deed did not affect any immovable property, for such immovable property as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be allowed. 35. In the case of Mr. Singhal, however, the application for bringing his legal representatives on the record was not made until 19th December 1944. It is alleged that the applicant only learnt of Mr. Singhal's death in November 1944, but no circumstances are stated which might lend support to this assertion. Nor does the application contain any prayer for Condonation of the delay or even that the abatement be set aside. The prayer was for substitution of the names of the legal representatives for that of the dead respondent. Mr. Badri Dass for the respondents urges that the appeal abates in toto on account of the failure of the appellant to implead Mr. Singhal's representatives within the time limited by law, and that in view of the inordinate delay of two years in making the application the abatement should not be set aside. The reply by Mr. Kapur was two-fold. He urged, firstly, that there can be no abatement of an appeal from an order in execution, and secondly, that as the question of the maintainability of an objection under O. 21, R. 90, Civil P.C., arose exclusively in relation to Sham Sunder's decree, no other decree-holder was entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of a deceased decree-holder, whose legal representatives have not been brought on the record within the time limited by law, it is no longer possible to send such notice or allow such an opportunity. For the same reason, it is obvious that the appeal must abate in toto for failure to bring the legal representatives of Mr. Singhal on the record within time. The interest of all the decree-holders in the; sale proceeds was a Joint interest and a decision which will not be binding on one or more of them will inevitably result in contradictory (orders) with respect to the same subject-matter. I would, therefore, hold that the appeal abates in toto. 36. The position is somewhat different in respect of the revision. Mr. Badri Dass argues that this is a proceeding in a Court of civil jurisdiction and should, therefore, he held to be governed by the procedure relating to suits, as provided by S. 141 Civil P.C. He is also referred to [Basawanjalayulu v. Ramalingayya] to A.I.R. 1938 Mad. 115 : 176 I.C. 344 and [Anandamoyi Dasi v. Rudra Mahanti] ('19) 21 I.C. 407 (Cal.) In the former case a learned Single Judge of the Madras High Court followed the practice of that Court in hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons, I would dismiss both the appeal and the revision petition, and in each case I should allow the respondents their costs. Din Mohammad J. 39. I am entire agreement with my learned brother Cornelius that it should be held that in the circumstances of this case an interest of a partner in partnership assets-is movable and not immovable property even if it comprises lands and other buildings, etc. It is true that while delivering my judgment in (88) 25 A.I.R. 1938 Lah. 65 : 177. I.C. 116 concurred in by Addison J., I had observed : [A.I.R. 1938 Lah. 65 (68)] from this discussion of the subject it would be clear that the question is not free from difficulty and one cannot be sure of the correctness of one's decision whichever way one may lean. For the reasons stated above, we are on the whole disposed to think that an interest of a partner in partnership assets is intended to be treated as movable under R. 49, O. 21, Civil P.C. 40. Now that the matter has been fully thrashed out before us, I entertain no doubt whatever in this connection. I further agree that the appeal abates on account of the appellant not bringing the representatives of the deceased respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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