w w w . L a w y e r S e r v i c e s . i n


Company & Directors' Information:- S S S FIBRE LIMITED [Active] CIN = U17110PB2005PLC027818

Company & Directors' Information:- J K S FIBRE GLASS PVT LTD [Strike Off] CIN = U26109WB1993PTC059966

Company & Directors' Information:- ADITYA PRODUCTS LIMITED [Amalgamated] CIN = U51909DL1993PLC053066

Company & Directors' Information:- O K GLASS FIBRE PRIVATE LIMITED [Active] CIN = U26102MH1995PTC095571

Company & Directors' Information:- G L FIBRE PRIVATE LIMITED [Strike Off] CIN = U17112PB2010PTC033873

Company & Directors' Information:- ADITYA SALES PRIVATE LIMITED [Strike Off] CIN = U51395OR2006PTC009081

Company & Directors' Information:- FIBRE AND FIBRE PRODUCTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U28113MH1997PTC110434

Company & Directors' Information:- INDIA FIBRE PVT LTD [Active] CIN = U17232WB1968PTC027401

Company & Directors' Information:- AMITA SALES PVT. LTD. [Dissolved] CIN = U51909WB1994PTC066088

    C.R.P.1230 Of 1999

    Decided On, 14 September 2001

    At, High Court of Andhra Pradesh


    For the Appearing Parties: N.V. Ravi Kumar, Ravi Vora, Advocates.

Judgment Text


( 1 ) THE revision petitioner is the decree holder in EP No. 7 of 1999 in OS No. 4914 of 1998 on the file of the IX Junior Civil Judge, City civil Court, Hyderabad. The respondent herein is one Messrs Aditya Fibre Glass Products, represented by its proprietrix Smt.. Vijayalakshm. She had filed an application under Section 151 CPC praying the Court to recall the warrant of attachment dated 29-1-1999 and to dismiss the execution petition as a nullity. It is stated that she is the third party and proprietrix of the firm. When the bailiff came from the Court to attach the movables properties she came to know that a suit for recovery of Rs. 19,354. 00 was filed and an ex parte decree was passed against RSI Fiber Glass Products Private Limited, the defendant in the said suit. It was also averred that she is in no way concerned with the RSI Fiber Glass Products Private Limited and taking advantage of the fact that her address had been shown the decree holder is trying to proceed against the movable properties belonging to different firm altogether and hence such an order is illegal. The Court below by an order dated 5-2-1999 had allowed EA No. 15 of 1999 filed by the Aditya Fibre Glass Products represented by Smt.. Vijayalakshmi and had recalled the warrant of attachment issued in EP No. 7 of 1999. Aggrieved by the same the decree holder/plaintiff in EP No. 7 of 1999 had preferred the present civil revision petition.

( 2 ) SRI Vora Ravi Kumar, learned Counsel for the revision petitioner, had contended that Smt.. Vijayalakshmi is the proprietrix of both the firms and in fact suit summons had been served on her but she had not chosen to contest the litigation and for the purpose of delaying the execution of the decree and to create some obstruction this frivolous petition was thought of. Even otherwise, in a case of this nature, the remedy available to a third party is only under Order XXI, Rule 58 CPC to raise attachment by filing a proper claim and not by invoking Section 151 CPC. The learned Counsel also had drawn my attention to the decree in the suit and also certain other orders which had been passed by the Court below which clearly go to show that both Smt.. Vijayalakshmi and also her husband are having ample knowledge about the passing of the decree and only with a view to further delay the execution of the decree the present application was filed and the Court below erroneously allowed the said application.

( 3 ) THE learned Counsel representing the respondent had drawn my attention to paras 4 and 5 of the impugned order and had contended that even on the basis of the material available and Ex. B1 to B4 it is clear that Aditya Fibre Glass Products is only the care taker address of RSI Fibre Glass Products and hence any order of attachment as against the third party Aditya Fibre Glass Products is only a nullity and such an order is not sustainable.

( 4 ) HEARD both the Counsel.

( 5 ) THE facts are not in dispute. It is pertinent to note that Smt.. Vijayalakshmi is the proprietrix of both the firms and both the firms are only Proprietary concerns. The suit is filed by the revision petitioner/ decree holder plaintiff for recovery of amount and for reasons best known the said Smt.. Vijayalakshmi had not chosen to contest the matter and suffered an ex parte decree and in execution of the same EP No. 7 of 1999 was filed. With a view to avoid attachment of movables styling herself to be a third party she filed EA No. 15 of 1999 in EP No. 7 of 1999. The Court below on an impression that these firms are two different concerns and hence there cannot be any attachment of movables of another firm, which is not shown as a defendant in the suit, had allowed the application filed under Section 151 CPC.

( 6 ) AT the outset, I may state that in the matter of attachment either before judgment or after judgment in execution of a decree, the remedy by way of claim is provided for under Order XXXVIII, Rule 8 CPC and also under Order XXI, Rule 58 CPC. However, with a view to object the execution of attachment warrant by the bailiff the respondent had filed an application under Section 151 CPC which, in my considered opinion, is a misconceived remedy. In a matter of this nature the inherent powers under Section 151 CPC cannot be invoked. The Court below had totally erred in allowing such application under Section 151 CPC. Be that as it may, as already stated supra, the aforesaid Smt.. Vijayalakshmi is the proprietrix of both the firms. It is not the case of the said Smt.. Vijayalakshmi that the decree holder cannot proceed against her properties but her contention is that movables sought to be attached belong to a different firm which is not shown as defendant. This contention also is not sustainable for the reason that Section 4 of the Indian Partnership Act defines the partnership firm. In the Law of Partnership by me at page 13 while dealing with the definition of partnership I had expressed an opinion as:"partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. The essential elements of a partnership are: 1. There must be an agreement entered into by all the persons concerned. 2. Such agreement must be to share the profits of a business. 3. The business must be carried on by all or any of the persons concerned, acting for all. In R. M. Chidambaram Pillai v. CIT (1970 (77) ITR 494 the Full Bench of the Madras High Court held on this aspect. Bhatwanji Morarji Goculdas v. Alembic Chemical Works Company Limited (1948 (18) Company Cases 205, 209 - AIR 1948 PC 100) to which our attention has been invited, no doubt, stated:"it is true that the Indian Partnership Act goes further than the English Partnership Act, 1890, in recognizing that a firm may possess a personality distinct from the persons constituting it, the law in India in that respect being more in accordance with the law of Scotland, than with that of England. "but by this observation we do not think that Sir John Beaumont, who spoke for the Judicial Committee, meant to say that a firm under the Indian law is a legal entity distinct from its partners. In fact, the further observations in the judgment make this clear, namely:the Indian Act, like the English Act, avoids making a firm a corporate body, enjoying the rights of perpetual succession. "as a matter of fact, the rule in that case was that when all the members who entered into a partnership originally ceased to be members of the firm by death or assignment, there was no longer any privity such as to sustain the continued existence of the firm and that consequently upon the change in the membership of the firm, the agreement came to be an end. "thus it is clear that even the Indian Partnership Act avoids making a firm a corporate b

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ody enjoying rights of perpetual succession. In such a case, in the case of proprietary concern when the same Smt.. Vijayalakshmi is the proprietor in both the firms it cannot be said that movables sought to be attached do not belong to the said Vijayalakshmi who is the defendant in the suit. ( 7 ) IN the light of the foregoing discussion I am totally convinced that the respondent had made a frivolous application under Section 151 CPC to recall the warrant of attachment by holding that the decree is a nullity and in fact the Court below had committed jurisdictional error in allowing such an application. ( 8 ) FOR the foregoing reasons, the impugned order is hereby set aside and the civil revision petition is allowed with costs.