MRS. P. SUBBIAH ALIAS DHANALAKSHMI SUBBIAH Vs. VENKATATHIRU MUTHURAJA AND ORS.

JUDGEMENT

(1.) THE question in this Civil Miscellaneous Second Appeal is whether when the judgment -debtor is a person who was a partner of a firm which has since been dissolved, the decree -holder can proceed against the interests of that person (judgment -debtor) in the dissolved firm only under Order 21, Rule 49, Code of Civil Procedure. The appellant before me in this Civil Miscellaneous Second Appeal is the judgment -debtor in a decree obtained by the first respondent herein. The decree -holder attached the right, title and interest of the judgment -debtor in the dissolved firm by name, General Engineering Foundry Industrial Estate, Tiruchirapalli. The said property (right, title and interest of the judgment -debtor in the defunct firm) was sold in Court -auction after which the judgment -debtor filed an application under Order 21, Rule 90, Code of Civil Procedure, for settling aside the said sale. The executing Court while dealing with the above -said application, to set aside the sale, dismissed the execution petition itself holding that it was not maintainable.

(2.) THE view of the executing Court is that the decree -holder ought to have adopted the special procedure provided under Order 21, Rule 49, Code of Civil Procedure in proceeding against the right, title and interest of the judgment -debtor in General Engineering Foundry, and that the said procedure having not been followed, the execution petition resulting in the sale was not maintainable. The said execution petition came to be dismissed. On appeal by the decree -holder, the learned Additional District Judge, Tiruchirapalli reversed the finding of the executing Court and held that the special procedure prescribed under Order 21, Rule 49, Code of Civil Procedure, is not applicable to this case inasmuch as the partnership, General Engineering Foundry, had been dissolved even before the decree -holder took out execution. The view of the Appellate Judge is that the special procedure under Order 21, Rule 49 is applicable only when the partnership is in existence and not after it stood dissolved. He based his view on a decision of this Court, in Rangayya v. Nagapottu Rao : AIR 1946 Mad 176. It is the correctness of this view that is questioned by the judgment -debtor in this Civil Miscellaneous Second Appeal.

(3.) THE learned Counsel for the judgment -debtor contends that even though the partnership had been dissolved, still the accounts had not been settled and till a final decree in the suit for dissolution and taking of accounts is passed, no person who was a partner of the firm can claim title to any particular property which originally belonged to the firm and that therefore till accounts are settled between the erstwhile partners, the decree -holder has to adopt the special procedure prescribed under Rule 49. This contention is not tenable. It is true that till the accounts are settled between the erstwhile partners, there is no question of any one of them claiming exclusive title to any property which originally belonged to the firm. Even so the question is whether the special procedure laid down under Rule 49 has any application to a dissolved partnership. As indicated earlier, the language of the rule is quite plain and that makes it clear that the rule applies only to a partnership which is in existence and not to one which has already been dissolved.