TMI Blog2005 (8) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... rbachan Singh for ₹ 2927.57 and another by Smt. Kamla for ₹ 37,592.57. Along with the aforesaid surety bonds, House No.79B Block Sri Ganganagar was also furnished against security. The appeal preferred by the State of Rajasthan against the aforesaid judgment and decree was allowed ex parte by the High Court. An application under Section 144 C.P.C. was moved on behalf of the State which was registered as Civil Misc. Case No.2 of 1981. The State of Rajasthan impleaded Sharma Co., Smt. Kamla Devi and Shri Gurbachan Singh as respondents to the said proceedings. Smt. Dhanwanti Devi, the wife of Shri Shiv Lal Sharma was the exclusive owner of House bearing No. 80B Block Sri Ganganagar. She executed a Will dated 7.12.1983 bequeathing the aforesaid house in favour of her daughter's son Ashutosh. Smt. Dhanwanti Devi died in May, 1985. It is stated that the probate proceedings are pending in respect of the aforesaid Will. The District Judge, Sri Ganganagar allowed the application filed by the State of Rajasthan under Section 144 C.P.C. and held that the action can be taken against Smt. Kamla Devi and that the applicant-State was entitled to interest from Sharma Co. and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court held that the Will was prepared to defraud the creditor and not with an intention to bonafidely bequeath the property to the appellant, daughter's son. Aggrieved by the said judgment and order dated 12.11.2003, the appellant preferred the above appeal. We heard Mr. Manoj Prasad, learned counsel appearing for the appellant and Mr. Aruneshwar Gupta, learned Additional Advocate General, appearing for the State of Rajasthan. Learned counsel appearing for the appellant raised two questions for consideration. (a) A decree cannot be executed against a partner when the decree was against the partnership firm; (b) A decree cannot be executed in violation of Order 21 Rules 49 and 50 C.P.C. Learned counsel appearing for the appellant submitted that Smt. Dhanwanti Devi had purchased House No.80B Block Sri Ganganagar from the State of Rajasthan on 7.7.1947 and that except Smt. Dhanwanti Devi no other person including her husband had any right, title or interest in the said property. It was further submitted that the proceedings in the instant case were initiated in utter disregard of the provisions of Order 21 Rules 49 and 50 C.P.C. and, therefore, the procedure adopted as ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtner who habitually acts in the business of the firm of any matter relating to the affairs of the firm operates as notice to the firm, except in the case of a fraud on the firm committed by or with the consent of that partner. Section 25 Liability of a partner for acts of the firm Every partner is liable, jointly with all the other partners and also severally for all acts of the firm done while he is a partner. Section 24 deals with the effect of notice to a partner. Such notice may be binding if the following conditions are satisfied: (a) the notice must be given to a partner; (b) the notice must be a notice of any matter relating to the affairs of the firm; (c) fraud should not have been committed with the consent of such partner on the firm. Section 24 is based on the principle that as a partner stands as an agent in relation to the firm, a notice to the agent is tantamount to the principles and vica versa. As a general rule, notice to a principal is notice to all his agents; and notice to an agent of matters connected with his agency is notice to his principal. Under Section 25, the liability of the partners is joint and several. It is open to a creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while partner. Its principle is clear and specific, viz., that every partner is liable for all the acts of the firm done while he is a partner jointly along with other partners and also severally. Therefore, it cannot be held that the said liability ceases merely because a partner has ceased to be partner subsequent to the said period. We have already referred to the arguments advanced by the learned counsel for the appellant on Order 21 Rules 49 and 50 C.P.C. The High Court has clearly held that the Will was executed by Smt. Dhanwanti Devi to defeat the execution of a decree obtained by the State. Order 21 Rule 49 reads thus: Order 21 Rule 49 : Attachment of partnership property (1) Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such. (2) The Court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property and profits with payments of the amount due under the decree and may, by the same or a subsequent order, app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Partnership Act 1932 (9 of 1932). (2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c) as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. (3) Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (4) Save as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer. (5) Nothing in this rule shall apply to a decree passed against a Hindu undivided family by virtue of the provisions of rule 10 of Order XXX. The execution under this Rule can only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the execution etc. Ultimately, the District Judge dismissed the application filed under Order 21 Rules 49 and 50 C.P.C. and the Review Application was also dismissed on 5.9.1998. Thereupon the appellant filed S.B. Civil Execution First Appeal No.2 of 1998 and the said appeal was dismissed on 12.11.2003. Now the parties are in this Court. It is not in dispute that the decree amount of ₹ 37,593/- was received by the State on 17.10.1992. The dispute between the parties is only with reference to the interest on the principal amount of ₹ 37,593/- as on 17.10.1992, which according to the State, was payable by the Firm. A sum of ₹ 61,890/- was arrived at as interest on ₹ 37,593/- as on 17.10.1992. Mr. Aruneshwar Gupta submitted that the State has been dragged into Court unnecessarily by filing a vexatious litigation by the appellant and, therefore, the State must be sufficiently compensated by directing the appellant to pay the interest @ 18% p.a. on ₹ 37,593/- from 17.10.1992 till date. Though the argument of Mr. Aruneshwar Gupta appears to be attractive on the first blush, yet on a reconsideration and re-appreciation of the same, the said submission h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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