Decided on September 27,2006

Shivmoni And Co. Appellant
Canara Bank And Anr. Respondents


K.Gnanaprakasam, J. (Chairperson) - (1.) THIS miscellaneous appeal is directed against the order dated 2nd December, 2002 passed in I.A. No. 6 in Original Application No. 702 of 1996, on the file of D.R.T., Bangalore. In fact, this miscellaneous appeal was disposed of by my predecessor by order dated 3rd March, 2005, and the same was challenged in the writ petition No. 15371 of 2005 (GM : D.R.T.) before the High Court of Karnataka at Bangalore, and the said writ petition was allowed by order dated 9th November, 2005 by remitting the matter to this Tribunal for fresh consideration.
(2.) IT appears that the respondent Banks have taken out an application for attachment of the property in I.A. No. 2 of 1993, while the suit was pending before the City Civil Judge, Bangalore, as O.S. No. 2311 of 1993, before it was transferred to the D.R.T. and the appellant herein viz. Shivmoni & Co. have filed an application before the City Civil Judge, Bangalore, and thereafter, it got transferred to the D.R.T. and taken up for inquiry in I.A. No. 6 of 1996 and the application filed by the appellant to vacate the order of attachment was dismissed and as against the same, the present appeal has been filed. Facts of the case are as follows: One Shree Vallabh Mohatta filed the affidavit on behalf of the appellant company claiming himself as the chief executive of the appellant contending that the appellant company is a partnership firm and the same was constituted on 6th June, 1952 and was duly registered under the Indian Partnership Act, 1932. There were only two partners viz. (1) Shiv Narayan M. Mohatta and (2) Shri Moni Bose, and the said Moni Bose is the defendant No. 2 in the Original Application. The partnership was last executed on 19th November, 1959. The partnership was continued till the death of Shiv Narayan M. Mohatta, who died on 22nd August. 1990 and as per the deed of partnership, the firm would not be dissolved on the death of a partners and the heir or heirs of a deceased partner would inherit the relevant share of the deceased partner. It is further stated that the property attached belongs to the appellant firm and not to the defendant No. 2 and the appellant firm is still subsisting and has not been dissolved. The defendant No. 2 was only a partner of the firm and, as such, he was not entitled to deal with any portion of that property, which belongs to the appellant partnership firm. The appellant is also not a party to the suit. No case has been made out for order of attachment and prayed for the vacation of the order of attachment.
(3.) THE respondent Banks filed objections by way of counter to the said application wherein they have contended that they do not admit that Shree Vallabh Mohatta is the chief executive of the appellant company and he has no authority to file the application on behalf of the appellant firm. They have admitted that Bhagwati Devi Mohatta is the widow and legal heir of S.M. Mohatta and there are no other legal heirs to late S.M. Mohatta. The respondents also do not admit the correctness and genuineness of the documents produced in the application filed by the appellant in the absence of original of those documents. It is also stated that the application filed by the appellant is not maintainable and the order of attachment passed was in order.;

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