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



M/s. Yarn Distributors, Rep. by its partner, Gopalal Mundra, Calcutta v/s National Textile Corporation (Tamil Nadu & Pondicherry) Ltd., Coimbatore, Unit : Somasundaram Mills, Coimbatore & Others


Company & Directors' Information:- NATIONAL TEXTILE CORPN LIMITED [Active] CIN = U74899DL1968GOI004866

Company & Directors' Information:- PONDICHERRY TEXTILE CORPORATION LIMITED [Active] CIN = U17111PY1985SGC000369

Company & Directors' Information:- J P P MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2003PTC010491

Company & Directors' Information:- K P N TEXTILE MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2006PTC013048

Company & Directors' Information:- G S DISTRIBUTORS LIMITED [Active] CIN = U51109PB1997PLC019978

Company & Directors' Information:- L K DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909TZ2013PTC019221

Company & Directors' Information:- V M D MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1994PTC004822

Company & Directors' Information:- A R C MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1994PTC004845

Company & Directors' Information:- K S R TEXTILE MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1988PTC002230

Company & Directors' Information:- S AND Y MILLS LIMITED [Not available for efiling] CIN = U17111TZ1994PLC005460

Company & Directors' Information:- M L YARN (INDIA) PRIVATE LIMITED [Active] CIN = U51494WB1998PTC087708

Company & Directors' Information:- D C MILLS PRIVATE LIMITED [Active] CIN = U25199KL1996PTC009988

Company & Directors' Information:- B D TEXTILE MILLS PRIVATE LIMITED [Active] CIN = U17100MH1988PTC046822

Company & Directors' Information:- S V DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51900MH1994PTC076003

Company & Directors' Information:- R A MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2006PTC013248

Company & Directors' Information:- S M TEXTILE LIMITED [Active] CIN = U17111TZ1990PLC002780

Company & Directors' Information:- N. R. DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909PN1999PTC014206

Company & Directors' Information:- M P S DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909WB2000PTC091147

Company & Directors' Information:- K L TEXTILE MILLS LIMITED [Active] CIN = U17115TZ1991PLC003294

Company & Directors' Information:- C R MILLS COIMBATORE PRIVATE LIMITED [Active] CIN = U17111TZ2002PTC010317

Company & Directors' Information:- P G TEXTILE MILLS LTD [Under Liquidation] CIN = U99999GJ1970PLC001724

Company & Directors' Information:- J M MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2006PTC013113

Company & Directors' Information:- S F DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U74999MH2007PTC174305

Company & Directors' Information:- M H TEXTILE PRIVATE LIMITED [Active] CIN = U17120DL1994PTC057924

Company & Directors' Information:- J. K. YARN PRIVATE LIMITED [Active] CIN = U51909WB2008PTC122024

Company & Directors' Information:- M T A MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1989PTC003048

Company & Directors' Information:- TEXTILE (INDIA) PRIVATE LIMITED [Strike Off] CIN = U31909KA1986PTC007544

Company & Directors' Information:- P A MILLS INDIA LTD. [Not available for efiling] CIN = U17111TN1990PLC019762

Company & Directors' Information:- K N M MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1990PTC002702

Company & Directors' Information:- K S S TEXTILE MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2005PTC011609

Company & Directors' Information:- D C TEXTILE MILLS PRIVATE LIMITED [Active] CIN = U17100MH1988PTC046811

Company & Directors' Information:- B & P DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U74120WB1992PTC055297

Company & Directors' Information:- M P TEXTILE PVT LTD [Active] CIN = U17124AS1998PTC005297

Company & Directors' Information:- V M MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2005PTC011763

Company & Directors' Information:- A. K. S. DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909WB2009PTC137228

Company & Directors' Information:- V E S TEXTILE COMPANY PRIVATE LIMITED [Active] CIN = U17111TZ1994PTC005539

Company & Directors' Information:- S B YARN (INDIA) PVT LTD [Active] CIN = U51101MN1991PTC003530

Company & Directors' Information:- S B YARN INDIA PRIVATE LIMITED [Not available for efiling] CIN = U25209MN1991PTC003580

Company & Directors' Information:- K. U. YARN PRIVATE LIMITED [Active] CIN = U15321GJ2007PTC049969

Company & Directors' Information:- J P M DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U51909TG2012PTC080662

Company & Directors' Information:- B D YARN PRIVATE LIMITED [Active] CIN = U17111DL2001PTC112510

Company & Directors' Information:- A B DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U32109DL2000PTC104987

Company & Directors' Information:- B T DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909DL2004PTC129428

Company & Directors' Information:- S M S DISTRIBUTORS PRIVATE LIMITED [Under Process of Striking Off] CIN = U51909DL2006PTC145481

Company & Directors' Information:- S G DISTRIBUTORS LTD [Amalgamated] CIN = U71012WB1982PLC035612

Company & Directors' Information:- N K J DISTRIBUTORS PVT LTD. [Strike Off] CIN = U51909WB1992PTC054235

Company & Directors' Information:- S. S. MILLS PRIVATE LIMITED [Active] CIN = U24231GJ1988PTC010885

Company & Directors' Information:- V. V. A . TEXTILE PRIVATE LIMITED [Active] CIN = U17120UP2015PTC075089

Company & Directors' Information:- L A DISTRIBUTORS PVT LTD [Active] CIN = U52322WB2006PTC109871

Company & Directors' Information:- K P S TEXTILE MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1995PTC006248

Company & Directors' Information:- G M MILLS PRIVATE LIMITED [Active] CIN = U51900MH1999PTC122189

Company & Directors' Information:- SOMASUNDARAM MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1938PTC000177

Company & Directors' Information:- G. P. DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U40300UP2011PTC047731

Company & Directors' Information:- K T M TEXTILE MILLS PRIVATE LIMITED [Strike Off] CIN = U17110GJ1983PTC006001

Company & Directors' Information:- R B TEXTILE MILLS PVT LTD [Strike Off] CIN = U17124RJ1981PTC002354

Company & Directors' Information:- B R G TEXTILE PRIVATE LIMITED [Strike Off] CIN = U17111TZ1994PTC005358

Company & Directors' Information:- I T DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U67120KL1994PTC008402

Company & Directors' Information:- R N DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U51109WB1998PTC088009

Company & Directors' Information:- J R DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909DL2012PTC232997

Company & Directors' Information:- S M S TEXTILE MILLS LIMITED [Strike Off] CIN = U17115TZ1990PLC002907

Company & Directors' Information:- M K DISTRIBUTORS PVT LTD [Active] CIN = U51109WB1968PTC027375

Company & Directors' Information:- T S MUNDRA 4 CO LTD [Active] CIN = U74140WB1982PLC035124

Company & Directors' Information:- V K YARN PRIVATE LIMITED [Active] CIN = U17115DL2005PTC143050

Company & Directors' Information:- K V DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U74130UP1997PTC022703

Company & Directors' Information:- CALCUTTA CO LTD [Active] CIN = U67120WB1940PLC009980

Company & Directors' Information:- S R YARN PRIVATE LIMITED [Active] CIN = U17115DL2005PTC144116

Company & Directors' Information:- T M DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909WB2009PTC133087

Company & Directors' Information:- R B MILLS PVT LTD [Active] CIN = U15141AS1949PTC001939

Company & Directors' Information:- B M DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909KA2020PTC137789

Company & Directors' Information:- A R S TEXTILE MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1986PTC001739

Company & Directors' Information:- J V YARN MILLS INDIA PRIVATE LIMITED [Active] CIN = U17111TZ2005PTC011917

Company & Directors' Information:- M M T DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U74899DL1985PTC021652

Company & Directors' Information:- S J DISTRIBUTORS PVT LTD [Active] CIN = U51109WB1996PTC080428

Company & Directors' Information:- V-ON TEXTILE PRIVATE LIMITED [Strike Off] CIN = U17111TN2006PTC060502

Company & Directors' Information:- D A DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049965

Company & Directors' Information:- N D DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U24239DL1999PTC102483

Company & Directors' Information:- V P R TEXTILE MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ2001PTC009623

Company & Directors' Information:- I AND F DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51397KA1989PTC010482

Company & Directors' Information:- G N DISTRIBUTORS PVT LTD [Active] CIN = U51109WB1986PTC040742

Company & Directors' Information:- L P DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U24232UP2002PTC027016

Company & Directors' Information:- K B DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U51395OR1998PTC005383

Company & Directors' Information:- M AND A DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U52190RJ2003PTC018303

Company & Directors' Information:- R L B TEXTILE PRIVATE LIMITED [Strike Off] CIN = U17290PN2011PTC139830

Company & Directors' Information:- M B DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909WB2004PTC100898

Company & Directors' Information:- S K TEXTILE MILLS PRIVATE LIMITED [Active] CIN = U18109DL2013PTC253544

Company & Directors' Information:- A P J TEXTILE PRIVATE LIMITED [Strike Off] CIN = U17111DL2005PTC143831

Company & Directors' Information:- H N TEXTILE PRIVATE LIMITED [Strike Off] CIN = U17299DL2007PTC160494

Company & Directors' Information:- M B DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909DL2004PTC313066

Company & Directors' Information:- G S A DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U51226WB1997PTC086127

Company & Directors' Information:- A T P DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U36911WB1999PTC088703

Company & Directors' Information:- M I TEXTILE MILLS PRIVATE LIMITED [Strike Off] CIN = U17124RJ1974PTC001562

Company & Directors' Information:- V N V TEXTILE INDIA PRIVATE LIMITED [Active] CIN = U17111TZ2005PTC011695

Company & Directors' Information:- C & C DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U52190MH2010PTC205982

Company & Directors' Information:- B T MILLS PRIVATE LIMITED [Active] CIN = U18101MH1997PTC109479

Company & Directors' Information:- C S S DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51900MH1997PTC111493

Company & Directors' Information:- S. M. DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U74899DL1993PTC053434

Company & Directors' Information:- J T TEXTILE PVT LTD [Strike Off] CIN = U18101HR1996PTC032972

Company & Directors' Information:- T R MILLS PRIVATE LIMITED [Active] CIN = U17111KA1954PTC000799

Company & Directors' Information:- S R T DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U29130KL2001PTC014614

Company & Directors' Information:- J S DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909GJ1994PTC022221

Company & Directors' Information:- M. D. X. DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51109MH2009PTC196832

Company & Directors' Information:- P V YARN PRIVATE LIMITED [Active] CIN = U17111TZ2000PTC009324

Company & Directors' Information:- J K MILLS LTD [Strike Off] CIN = U17200WB1946PLC013603

Company & Directors' Information:- M P DISTRIBUTORS PVT LTD [Strike Off] CIN = U51909WB1985PTC039432

Company & Directors' Information:- G N TEXTILE PRIVATE LIMITED [Active] CIN = U17116GJ2003PTC042654

Company & Directors' Information:- D S M DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U17111UP1995PTC018687

Company & Directors' Information:- N. M. DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51109UP1997PTC021895

Company & Directors' Information:- S P DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51222PN2001PTC016605

Company & Directors' Information:- G M MILLS PRIVATE LIMITED [Amalgamated] CIN = U18101MH2003PTC138487

Company & Directors' Information:- K R M TEXTILE PRIVATE LIMITED [Active] CIN = U17200DL2013PTC252914

Company & Directors' Information:- D AND D DISTRIBUTORS INDIA PRIVATE LIMITED [Strike Off] CIN = U74999DL1998PTC096841

Company & Directors' Information:- A AND M DISTRIBUTORS INDIA PRIVATE LIMITED [Strike Off] CIN = U93000DL1998PTC094506

Company & Directors' Information:- C AND C TEXTILE PVT LTD [Active] CIN = U74999MH1991PTC060853

Company & Directors' Information:- R D TEXTILE MILLS PRIVATE LIMITED [Strike Off] CIN = U17111UP1977PTC004479

Company & Directors' Information:- N B DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U52590MP2007PTC020002

Company & Directors' Information:- B R A TEXTILE PVT LTD [Active] CIN = U17116PN1981PTC023770

Company & Directors' Information:- V P DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909DL2003PTC118731

Company & Directors' Information:- R. A. DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U36996GJ2009PTC057313

Company & Directors' Information:- TEXTILE (INDIA) PRIVATE LIMITED [Strike Off] CIN = U17111UP1975PTC004207

Company & Directors' Information:- M M DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U21019UP1991PTC013164

Company & Directors' Information:- R G DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U51109UP1984PTC006809

Company & Directors' Information:- P R DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U52602TN2011PTC080841

Company & Directors' Information:- MUNDRA DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51102RJ1995PTC010110

Company & Directors' Information:- A K R TEXTILE MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ2009PTC014985

Company & Directors' Information:- H R DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U51101MH2012PTC239144

Company & Directors' Information:- 3 S DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U51109MH2015PTC262994

Company & Directors' Information:- C W DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U74999MH2011PTC217672

Company & Directors' Information:- D. N. DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U72900MH2013PTC249972

Company & Directors' Information:- R. B. C. DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC043219

Company & Directors' Information:- G. H. DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U51909WB2011PTC162122

Company & Directors' Information:- S R G TEXTILE PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC168381

Company & Directors' Information:- M S DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U74140DL2011PTC219041

Company & Directors' Information:- V. B. TEXTILE PRIVATE LIMITED [Active] CIN = U17309DL2016PTC302347

Company & Directors' Information:- K D DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U51909DL2004PTC129265

Company & Directors' Information:- R R M TEXTILE PRIVATE LIMITED [Strike Off] CIN = U17123GJ2015PTC081690

Company & Directors' Information:- A & G DISTRIBUTORS PRIVATE LIMITED [Active] CIN = U24309PN2020PTC192532

Company & Directors' Information:- R P S TEXTILE PRIVATE LIMITED [Active] CIN = U17299DL2020PTC371406

Company & Directors' Information:- CALCUTTA DISTRIBUTORS PVT LTD [Strike Off] CIN = U51109WB1961PTC024977

Company & Directors' Information:- A J YARN MILLS PVT LTD [Strike Off] CIN = U17297PB1993PTC013549

Company & Directors' Information:- SOMASUNDARAM CORPORATION PRIVATE LIMITED [Strike Off] CIN = U93090TN1956PTC002521

Company & Directors' Information:- D N TEXTILE PRIVATE LIMITED [Strike Off] CIN = U52321TN1995PTC033866

Company & Directors' Information:- U. V. DISTRIBUTORS PRIVATE LIMITED [Strike Off] CIN = U51909MH2007PTC170057

Company & Directors' Information:- H V S DISTRIBUTORS PRIVATE LIMITED [Not available for efiling] CIN = U51909KA1996PTC020155

Company & Directors' Information:- THE NATIONAL MILLS COMPANY LIMITED [Not available for efiling] CIN = U99999MH1905PTC000222

Company & Directors' Information:- DISTRIBUTORS (INDIA) LIMITED [Dissolved] CIN = U99999MH1939PTC002906

Company & Directors' Information:- THE NATIONAL YARN COMPANY LIMITED [Dissolved] CIN = U99999MH1942PTC003780

Company & Directors' Information:- TEXTILE CORPORATION LIMITED [Dissolved] CIN = U99999MH1943PLC007561

Company & Directors' Information:- F. AND S. DISTRIBUTORS PRIVATE LIMITED [Under Liquidation] CIN = U99999MH1960PLC011913

    C.M.S. A. No. 36 of 1997

    Decided On, 24 March 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM

    For the Appellant: T.S. Baskaran, Advocate. For the Respondents: R1, R. Parthiban, Advocate.



Judgment Text

(Prayer: Civil Miscellaneous Second Appeal filed under Order 21 Rule 58 (4) r/w Section 100 of C.P.C., against the judgment and decree dated 09.08.1995 and made in C.M.A.No.19 of 1994 on the file of District Judge, Coimbatore, confirming the judgment and decree dated 06.12.1993 and made in REA No.672/92 in E.P.No.13 of 1991 in O.S.No.924 of 1989 on the file of II Additional Sub Judge, Coimbatore.)1. The judgment and decree dated 09.08.1995 passed in C.M.A.No.19 of 1994, confirming the judgment and decree dated 06.12.1993, passed in R.E.A.No.672 of 1992 in E.P.No.13 of 1991 in O.S.No.924 of 1989, is under challenge in the present civil miscellaneous second appeal.2. The case on hand is a classic case where the real agony started for the plaintiff after obtaining a decree from the Civil Court. It is to be reiterated that the decree was passed in the year 1989 which was an exparte decree against respondents 2 to 6. Such a decree obtained in the year 1989 in the money suit is yet to be executed even after a lapse of more than 32 years, which exactly is the reason for the frustration caused amongst the civil litigants.3. The suit was instituted for recovery of money in O.S.No.924 of 1989, and within a short span of period, the suit was decreed in favour of the plaintiff in the very same year 1989. Thereafter, the decree holder viz., National Textile Corporation Ltd., the first respondent herein, filed E.P.No.13 of 1991, seeking execution of the decree passed in O.S.No.924 of 1989 dated 22.12.1989. The execution petition was filed against the immovable property measuring 8666 Sq.ft, now in T.S.No.113 in Bashyakaralu Street, Coimbatore. The attachment was effected on 17.01.1991. Admittedly, the property as of now is under attachment.4. The appellant M/s.Yarn Distributors, a partnership firm, is a third party to the decree passed in O.A.No.924 of 1989. The decree was passed against the M/s.Y.D. Agencies, a partnership firm. It is relevant to make an observation at this juncture that the first appellate Court made an observation that M/s.Y.D.Agencies/judgment debtor appears to be only an abbreviated form of M/s.Yarn Distributors who is the appellant in the present appeal. The appellant M/s.Yarn Distributors originally filed E.A.No.603 of 1991 under Order 21 Rule 58 for raising the attachment of the immovable property made in E.P.No.13 of 1991. The petition was filed not in a verified form, but, with affidavit and petition. Objection was raised for non filing the verified petition as required and the petition in E.A.No.603 of 1991 was withdrawn by the appellant. Subsequent to the withdrawal of E.A.No.603 of 1991, the appellant filed E.A.No.672 of 1992.5. The contention of the appellant is that the immovable property shown in the execution petition absolutely belonged to the appellant firm. While so, the first respondent, National Textile Corporation Ltd., had wrongly attached the said property, for which, the first respondent has no right to do so. The second respondent M/s.Y.D. Agencies, the fifth respondent Sri vivek Mundra and the sixth respondent M/s.Jyoti, have no connection with the appellant firm viz., M/s.Yarn Distributors. The other respondents 3 and 4 had already retired from the appellant firm viz., M/s.Yarn Distributors by the deed of retirement dated 01.10.1993. As the business carried on by the second respondent M/s.Y.D. Agencies Firm has no relevance or connection with the appellant firm, a petition was filed for raising the attachment under order 21 Rule 58.6. The first respondent, National Textile Corporation Ltd., objected the said contention by stating that M/s.Y.D. Agencies is an abbreviated form of M/s.Yarn Distributors who is the appellant and it is the property of the judgment debtor and the shares of the partners are brought for sale. The retirement of two partners viz., Sri Panalal mundra and Sri SivaPrakash mundra in the petition is an intentional for the purpose of the case and the important factum of retirement was not even pleaded in E.A.No.603 of 1991. The appellant M/s.Yarn Distributors and the second respondent M/s.Y.D. Agencies are different entities, is the findings arrived by the E.P. Court. However, the E.P.Court disbelieved the retirement of the third and fourth respondents and found the retirement from the appellant firm is not in pursuance of the provisions of the Partnership Act. Accordingly, the E.P Court rejected the contention of the two partners viz., the third and the fourth respondents and further, the judgment relied upon by the appellant reported in AIR 1966 SC 1300 was held as not applicable with reference to the facts of the case.7. The E.P.Court raised the attachment in respect of other three partners of M/s.Y.D.Agencies who were not the partners in the appellant firm M/s.Yarn Distributors. However, in respect of the two partners, the attachment is confirmed and accordingly, the property attached was directed to be put on sale for the purpose of realising the decree amount.8. The appellant filed an appeal in C.M.A.No.19 of 1994. The first Appellate Court independently and elaborately considered the facts, circumstances as well as the documents and evidences produced by the respective parties to the lis. Issues were framed. Even before the First Appellate Court, the appellants have raised the ground with reference to the provisions under Order 21 Rule 49 of C.P.C. It was contended that the partnership firm's property cannot be subjected to attachment in the absence of any decree in the name of the firm. The decree in the name of one or two partners of the firm would not provide a cause for attaching the property belongs to the firm itself. Thus, the procedure adopted as well as the judgment made by the E.P.Court is in violation of Order 21 Rule 49 of C.P.C., was the argument putforth by the appellant before the First Appellate Court.9. It was contended that there was a limitation contemplated in bringing the property belongs to the partnership firm. In view of the limitation, the property as a whole cannot be attached as done by the E.P. Court and the interest of the partners alone is to be attached by following the procedures contemplated under Order 21 Rule 49, if necessary by way of appointing a receiver. Thus, the attachment made as a whole by the E.P. Court is not in consonance with the provisions of C.P.C. It was contended that even if the decree is passed personally against the partners, their property in the capacity of the partners of the firm cannot be attached. It was admitted that the third respondent and the fourth respondent who were the partners in M/s.Y.D.Agencies, are liable to pay debts of the second respondent firm. But, they cannot be made liable in their capacity as the partners of the appellant firm.10. Considering those arguments, the First Appellate Court made a categorical finding in paragraph Nos.13 and 14 of the judgment which reads as under:“13. The property-vacant site measuring 86' x 66' vs attached on 17-1-1991. Considerable doubt arises about the genuineness of various documents of retirement filed by R-3 and R4. Ex.A-6 the Certificate issued by Additional Registrar of Firms, Societies and Non-Trading Corporation, West Bengal that (1) Sri. Pannalal Mundra and (2) Sri Prakash Mundra retired on 1-10-1990. Ex.A-7 (Xerox copy) is said to be (end of page No.8 in the Original) the letter written by the Appellant/claimant film to the Income Tax Officer informing them about the retirement of R-3 and R-4. If really, R-3 and R-4 retired from the partnership concern even on 1-10-90 it would have been definitely mentioned in E.A.603 of 1991 the earlier Claim Application filed by the Appellant-Firm. There is no whisper about the retirement of R-3 and R-4 in the Affidavit filed in E.A. No. 603 of 1991. No plausible explanation is offered by the Appellant as to why the factum of retirement was not mentioned in E.A. No.603 of 1991.14. Section 32 of the Partnership Act contemplate the procedure as to how a partner may retire from the firm. Under Section 72, Public Notice is to be issued for the retirement or expulsion of a partner. Under Section 63 of the Act, the changes in the constitution of the firm are to be recorded in case of retirement or dissolution of the firm. In the partnership act, various other procedure is laid down either for the retirement or expulsion of a partner. No authenticated documents for due compliance of Sections 32, 72 and 63 of Partnership Act is filed by the Appellant-firm to bring home the point that R-3 and R-4 have retired. In the absence of any such concrete evidence, no credence could be attached to Ex.R-4 Retirement deed.”11. The First Appellate Court had gone one step further and made a finding that under Order 41 Rule 33, the Appellate Court has wide powers to rectify the mistake in the judgment of the Lower Court suo moto. The power under Order 41 Rule 33, cannot be stretched to such an extent so as to cause prejudice to the appellant/claimant. The First Appellate Court formed an opinion that the Central Government undertaking National Textile Corporation Ltd., is expected to be more vigilant in filing the cross appeal assailing the line of reasonings adopted by the E.P.Court, however, it is unfortunate that the National Textile Corporation Ltd., has not come forward to ascertain its right as against the unscrupulous conduct adopted by the third respondent and the fourth respondent who were the partners in second respondent M/s.Y.D. Agencies. Based on the findings, the First Appellate Court could not able to agree that the line of reasonings adopted by the E.P.Court in the absence of any cross appeal by the National Textile Corporation. However, the First Appellate Court had no other option except to concur with the conclusion of the Lower Court and invoking some powers of the First Appellate Court resulting dismissal of the claim petition in toto, would cause prejudice to the interest of the appellant.12. Based on the said observation, the judgment and decree passed by the E.P.Court was confirmed by the First Appellate Court.13. The learned counsel for the appellant once again reiterated the ground stated before the First Appellate Court with reference to Order 21 Rule 49 C.P.C. The learned counsel for the appellant solicited the attention of this Court about the spirit of Order 21 Rule 49 where it is stated the property belonging to the partnership shall not be attached and sold in execution of the decree. Insisting the said phraseology, the learned counsel for the appellant reiterated that the spirit of the said phraseology in Order 21 Rule 49 was not considered by the E.P.Court as well as the First Appellate Court.14. The learned counsel for the appellant contended that the procedures to be followed in such circumstances are also contemplated under Sub Clause 2 to Order 21 Rule 49 and when there is a definite procedure for attachment of the property belongs to the partners are contemplated, there is no reason to deviate the same and make an attachment as a whole in respect of the property belongs to the appellant partnership firm. Thus, the judgment of the both Courts are liable to be set aside.15. The learned counsel in support of the said contention, cited the judgment of the Kerala High Court in the case of K.P.Shobana Vs.Catholic Syrian Bank Ltd., reported in (1989) 1 KLJ 19, wherein, the similar circumstances were considered by the Kerala High Court and relied on paragraph Nos.4 and 8, which reads as follows:“ 4. It is a well-established principle that during the subsistence of the partnership, the right of a partner is only to get his share of profit, if any, accruing to the partnership from the realisation of the property and upon dissolution of the partnership to a share in the value of the assets of the firm which remain after satisfying the liabilities set out in clause (a) and sub-clauses (i), (ii) and (iii) of clause (b) of section 48 of the Partnership Act. During the subsistence of the partnership, no partner can deal with the property of the partnership as his own. During the subsistence of the partnership, a partner, however, can assign his share to another and in that case, what the assignee would get would be only that which is permitted by section 29(1) of the Partnership Act, that is to say, the right to receive the share of profits assigned and accept the account of profits agreed to by the partners. See Addanki Narayanappa v. Bhaskara Krishnappa, AIR 1966 SC 1300.8. In the light of what is stated above, the finding of the Court below that the doctrine of res judicate would disentitle the petitioner to raise the above objections is liable to be vacated. It is all the more so because the property proclaimed for sale indisputably belongs to the firm and not to the judgment-debtor and the decree sought to be executed in not against the firm.”16. In the case of Addanki Narayanappa and Another Vs. Bhaskara Krishtappa and 13 others, reported in (1966) 3 SCR 400, which was relied on by the Kerala High Court. In the cases cited supra, it is again referred by citing that the Kerala High Court has decided the case relying on the Hon'ble Supreme Court Judgment and therefore, the judgment made in the present case is liable to be raised.17. The learned counsel for the appellant further cited a judgment of the Calcutta High Court, in case of Kurseong Hydroelectric Supply Co. Ltd., Vs. Lakshmi Narayan Sukhani and another, reported in AIR 1941 Cal 364, wherein the Calcutta High Court held that the debt due to a firm from a customer is a property of the firm within the meaning of Order 21 Rule 49, C.P.C., as such property it is not attachable under Order 21 Rule 46 in execution of a decree obtained against one or some of the partners in his or their individual capacity; and so a garnishee order cannot be made in such execution in respect of such a debt under Order 21 Rule 46 A which authorises garnishee proceedings only when a debt can be validly attached wider Rule 46 and has in fact been attached. The learned counsel relied on the following portion of the said judgment.“Or. 21, r. 49 is specific and mandatory cl. (1) of that rule lays down that except as provided for in that rule, property belonging to a partnership cannot be attached or sold when the decree under execution is not against the firm or against the partners as such. In such a case a charging order, with or without appointment of a Receiver, is the mode prescribed by cl. (2) of that rule. The scheme is to provide satisfaction to the decree-holder of such a person either by intercepting the share of the profits due to the latter through a Receiver and or by sale of his interest in the partnership. The scheme is not to break up the firm by a direct action on the part of executing Court, or to paralyse or hamper the activities of the firm by intercepting any part of its gross income. The share of the judgmentdebtor in the profits-the net income-can only be intercepted through the Receiver for the purpose of making satisfaction to the judgment-creditor or the Interest of the judgmentdebtor in the partnership as a going concern can be sold, leaving it to the purchaser at the Court sale to take such steps as he may be advised to take. Even the Receiver appointed by the Court will not have, during the continuance of the partnership, the right to interfere in the management or administration of the firm, or to require accounts of the partnership transactions, or to inspect the books of the firm without an express order of the Court and such an order would not be passed except in special circumstances, as for instance with a view to the dissolution of the firm. This scheme is based on a broad head of public policy, namely the protection of commerce, which is considered to be an important source of national wealth. If the debt in question is the property of the firm, Sundar and Rai, garnishee proceedings in respect thereto would be inconsistent with the scheme of Or. 21, r. 49, which in substance is a reproduction of sec. 23 of the English Partnership Act, for the garnishee order would then have the effect of intercepting from the firm a portion of its gross income. The interest of a partner on which a charging order operates is the share of that partner in the firm and is nothing more than his proportion of the partnership assets, which in turn is the gross assets converted into money less the debts and liabilities of the firm. On the principles we have discussed above a debt due to a firm from a customer is the property of the firm within the meaning of Or 21, r. 49.”18. The learned counsel appearing on behalf of the respondent National Textile Corporation Ltd., in toto disputed the argument advanced by the learned counsel for the appellant. He contended that the First Appellate Court has elaborately adjudicated all the grounds raised in the present appeal. Further, it is contended that the substantial question of law raised is not genuinely substantial, but relatable to the facts and circumstances which were adjudicated by two grounds and therefore, the appeal is liable to be dismissed in limine.19. The learned counsel for the first respondent National Textile Corporation Ltd., reiterated that E.A.No.603 of 1991, initially filed by the appellant was withdrawn. Perusal of the petition, there was no mentioning about the retirement of the partners nor the procedures followed for such retirement with reference to the provisions of the Partnership Act. In the absence of any such evidence to establish the legal retirement, there is no reason to believe or trust upon the statement made regarding the retirement from the partnership firm. It is contended that any such formal retirement in the absence of valid evidence in consonance with the provisions of law, cannot be trusted upon, only be taken into consideration for the purpose of exoneration or fixing liability. Thus, the very contention raised in this regard, is unsustainable. The second execution appeal in E.A.No.672 of 1992, was filed, wherein, for the first time, it is mentioned that the two partners who have shares in the judgment debtor partnership firm, had retired from the firm.20. Under those circumstances, the First Appellate Court ascertained the genuinity of the contention regarding the retirement from the partnership firm and made a finding that M/s.Y.D. Agencies appears to be the abbreviated form of M/s.Yarn Distributors and it is only the property of the judgment debtor and the shares of the partners are brought for sale. Thus, the retirement of third and fourth respondents pleaded, is only an intentional for the purpose of the case.21. A strong opinion is formed in this regard by the First Appellate Court. This apart, it was not disputed that the third and fourth respondents are also partners in the judgment debtor firm as well as in the appellant firm. When these facts are not disputed and it was found that the name of these two partnership firms have got the same relevancy and similarity, the contention raised regarding the retirement was not trusted upon.22. Under those circumstances, the conclusion of the E.P.Court was considered by the First Appellate Court and made a finding that the Trial court has allowed the application filed by the appellant partly only with reference to other partners who are not the partners to the judgment debtor firms.23. The First Appellate Court considered the grounds raised by the appellant with reference to the facts established before the E.P.Court, has elaborately discussed which is extracted in this judgment. More specifically, In paragraph Nos.13 and 14 of the judgment, the First Appellate Court has held that it is clear that the grounds raised by the appellant were met with and answered with reference to the facts and circumstances of the case. Even the First Appellate Court declined to exercise the suo moto powers under Order 41 Rule 33, keeping in mind that no prejudice would be caused to the appellant and therefore, the First Appellate Court has adopted a balanced approach, so as to arrive a conclusion both in the interest of the decree holder and not by causing prejudice to the appellant firm which is not a party in the original suit. The balanced approach adopted by the First Appellate Court is candid and convincing.24. The Appellate Courts are expected to borne in mind that once the suit is adjudicated and decree is passed, then the rights and interest of the decree holder is to be protected. Certain arguments even some times falls within the ambit of one provision of law. Such provision of law is to be interpreted with reference to the facts and circumstances of the case and ultimately the Courts are bound to keep in mind that the decree is expected to be executed in a manner it was passed and not otherwise. If the decree is unable to be executed, then, the reason must be only on the ground contemplated under any provisions of law and not otherwise.25. Therefore, this Court is of the considered opinion that both the Courts have held that the petition was

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partly allowed in respect of three partners who were not the partners in the judgment debtor firm and the property was attached in respect of the third and fourth respondents who are admittedly the partners in the judgment debtor firm as well as in the appellant firm.26. The first Appellate Court though considered the spirit of Order 41 Rule 33 for exercising suo moto powers, had restrained to exercise on the ground that no prejudice should be caused to the appellant claimant who is not a party to the original suit. However, the First Appellate Court concurred with the findings as well as the conclusion arrived by the E.P.Court. Accordingly, confirmed the judgment.27. Thus, this Court has no hesitation in arriving a conclusion that both the Courts have adopted a balanced approach in order to protect the interest of the decree holder without causing prejudice to the appellant who is the third party as far as the original suit is concerned. In certain unavoidable circumstances, the Courts are bound to take a view that the properties are to be sold and accordingly, the decree is to be realized.28. The E.P.Court though stated that the E.A. filed by the appellant was partly allowed and the attachment of property is confirmed in respect of the portion of the property of the respondents 3 and 4 who are the partners in the judgment debtor firm as well as the appellant firm, however, it is to be clarified that the property though inseparable, the Execution Court has no option except to sell the same, ascertaining the respective shares of each partners and accordingly, settle the decree holder by following the procedures contemplated.29. The substantial question of law raised is also relatable to the facts and circumstances which were elaborately adjudicated by the E.P. Court as well as the First Appellate Court, and this Court is of the opinion that the appellant is not raised any acceptable substantial question of law warranting any further adjudication beyond the ground discussed and decided by the First Appellate Court.30. In this view of the matter, the judgment and decree dated 09.08.1995, in C.M.A.No.19 of 1994 confirming the judgment and decree dated 06.12.1993 in R.E.A.No.672 of 1992 in E.P.No.13 of 1991 in O.S.No.924 of 1989, stands confirmed. Consequently, C.M.S.A.No.36 of 1997 stands dismissed. No costs.
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