C.K. Banerjee, J. - (1.) These are the two applications which are heard together by consent of parties. One of the applications is in the suit of State Bank of India against Nu Built Furniture Private Limited (In Liquidation) and other being the Suit No. 423 of 1971. The decree in this suit was passed on the 7th December, 1983 and this application has been made in execution of the said decree. The other application is also for execution of the decree passed in the suit of Nu Built Furniture Co. against State Bank of India being suit No. 673 of 1981.
(2.) In the execution application made by State Bank of India in its suit prayers have been made inter alia, for adjustment of the decretal dues of Nu Built Furniture Co. in Suit No. 673 of 1981 for the sums which represents the shares and interests of the judgment debtors Nos. 2 and 3 in the State Bank of Indias suit being 90% of the interest of the said judgment debtors in the firm Nu Built Furniture Co. and for further directions for execution of the balance. The other prayer is that the interest of the judgment debtors Nos. 2 and 3 namely Kumar Kasyab and Mahendra Kumar Kasyab in the said firm of Nu Built Furniture Co. be determined and leave be granted to serve notice on the said, firm on behalf of all the partners Sum notice has already been served and all the partners are before the Court. The other material prayer is that the properties and assets being furniture, stock-in-trade etc and profits of the firm Nu Built Furniture Co. be attached and a Receiver be appointed over the same to take possession thereof with direction to sell the same to the extent of the interest of the judgment debtors Nos. 2 and 3 of 90% or so much that may be found upon enquiry by this Court and Receiver be directed to pay the net tale proceeds to the plaintiff decree holder State Bank of India in pro tanto satisfaction of its claim.
(3.) Mr. Suresh P. Majumdar, learned counsel for the decree holder State Bank of India submitted that the State Banks suit was against the company in Liquidation and guarantors. The defendants nos. 2 and 3, namely, Kumar Kasyab and Mahondra Kumar Kasyab were the guarantors. They are petitioners of the firm Nu Built Furniture Co. and held 90% share in the firm that is Kumar Kasyab 50% and Mahendra Kumar Kasyab 40%. The affidavit-in-opposition filed in this application on behalf of the defendants by Rakesh Kasyab affirmed on 13th December, 1984 wherein a copy of the deed of partnership dated 18th December, 1973 constituting the firm Nu Biut Furniture Co. has been annexed, discloses that Kumar Kasyab also known as Bhupendra Kumar Kasyab has 50% share in the said firm as the Karta of his Mitakshara Hindu undivided family while Mahendra Kumar Kasyab as such Karta of his Mitakshara Hindu undivided family has 40% share in the said firm. It was submitted by Mr. Majumdar that the individual share of the said Kumar Kasyab and Mahendra Kasyab even though they were Kartas of the Hindu undivided family would be answerable for the claim of the bank. In support of his contention Mr. Majumdar cited two decisions of the Privy Council- (i) Deen Cayal Lal v. Jugdeep Narain Singh reported in 4 Indian Appeal 247. Here the rights and proprietary and Mokurruri title and share of a Hindu father in the joint family estate under the Mitakshara Law having been seized and sold in execution of a decree against the father, possession of the whole estate was delivered to the appellant as the purchaser. The son of the judgment debtor filed a suit to recover the same on the ground that the said properties could not be sold in execution proof of legal necessity for the debt. It was held by the Judicial Committee that assuming that a member of a Mitakshara joint family might not dispose of his share in the joint estate by voluntary conveyance without concurrence of his coparcener, yet the appellant, as the purchaser at an execution sale of such share, was entitled to ascertain the same by such partition as the judgment debtor might have compelled before the alienation of the share took place.;