1946 (6) TMI 9 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the interest of a partner in partnership assets comprising immovable property should be treated as movable or immovable property in respect of proceedings for sale in execution.
2. Jurisdiction of the Commercial Subordinate Judge in respect of Sham Sunder's execution.
3. Validity of the sale proclamation under Order 21 Rule 66, Civil Procedure Code (CPC).
4. Abatement of appeal due to failure to implead legal representatives of deceased respondents.

Issue-wise Detailed Analysis:

1. Nature of Partnership Interest (Movable or Immovable Property):
- The principal question was whether the interest of a partner in partnership assets that included immovable property should be treated as movable or immovable property in execution proceedings.
- The court referred to a previous Division Bench decision which treated such interest as movable property. This was contrasted with a Madras High Court decision in [Samuvier v. Ramasubbier], where such assets were treated as immovable property for the purposes of Section 17, Registration Act.
- The court concluded that the interest of a partner in partnership assets is essentially movable property, notwithstanding that part of the partnership property may be immovable. This conclusion was based on the legal conception that a partner's share is his proportion of the partnership assets after they have been realized and converted into money, and all debts and liabilities have been discharged.
- The court upheld the decision in [Barkat Ram v. Bhagwan Singh], which treated the interest of a partner in partnership assets as movable property under Order 21, Rule 49, CPC.

2. Jurisdiction of the Commercial Subordinate Judge:
- The jurisdiction of the Commercial Subordinate Judge in calling up Sham Sunder's execution from the Court of Sardar Kartar Singh was challenged on the grounds that only the District Judge could transfer the execution from one Subordinate Judge's Court to another, and that a charging order under Order 21, Rule 49, CPC did not constitute an attachment.
- The court held that a charging order under Order 21, Rule 49, CPC should be deemed an attachment for the purposes of Section 63, CPC, thereby validating the jurisdiction of the Commercial Subordinate Judge.
- The court also noted that the appellant had submitted to the jurisdiction of the Commercial Subordinate Judge by presenting applications under Section 47 and Order 21, Rule 90, CPC, and thus could not later contest the jurisdiction.

3. Validity of the Sale Proclamation:
- The appellant contended that the sale proclamation under Order 21, Rule 66, CPC was defective as it did not properly describe the property for sale.
- The court examined the documents and found that the proclamation as published correctly described the property for sale, including the interest of Ram Pershad in the partnership firm and the immovable property owned by the partnership.
- The court dismissed the argument regarding the incorrect description of the day of the week in the notice postponing the sale, noting that an adequate number of bidders attended, and the price fetched was high.

4. Abatement of Appeal:
- The issue of abatement arose due to the failure to implead the legal representatives of deceased respondents within the time limited by law.
- The court found that the application to bring the legal representatives of Bengali Mal on record was made with a reasonable explanation for the delay and allowed it.
- However, the application to bring the legal representatives of Mr. Singhal on record was made after an inordinate delay of two years without sufficient explanation. The court held that the appeal abated in toto due to this failure.
- The court also addressed the argument that appeals from orders in execution proceedings are not excluded from the rules relating to abatement contained in Order 22, CPC, and rejected the contention that the death of any of the other decree-holders was without effect on the appeal.

Conclusion:
- The court dismissed both the appeal and the revision petition, confirming that the interest of a partner in partnership assets is movable property, validating the jurisdiction of the Commercial Subordinate Judge, and upholding the validity of the sale proclamation. The appeal abated due to the failure to timely implead the legal representatives of the deceased respondents.