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TMI Blog1961 (3) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... Nathmull. Three such creditors are: 1. Hanuman Box Gothia, 2. Gouri Shankar Mal, and 3. Udaichand Hazarimal defendants Nos. 4, 5, and 6 in this suit. 3. It is pleaded in the plaint that the Tea Co., was the owner of three tea gardens and of export quota right therein for the year 1953/54. Ten annas share in three tea gardens known as Nurbong Tea Estate, Mulootar Tea Estate and Sivitar Tea Estate was attached along with quota rights therein. The share in the quota right was sold in execution of decrees obtained by the three decree-holders named before. This attachment and sale is pleaded to be unlawful and the allegations are that this attachment and sale was brought about fraudulently by the decree-holder defendants in collusion and conspiracy with the defendant Gangadhar Periwal. The particulars of fraud, collusion and conspiracy are set out in paragraph 8 of the plaint. The fraud alleged consists in not impleading the Garodias in the proceedings in which the sale took place and in suppressing from the court the fact that Messrs. Gangadhar Nathmull is an absolutely independent concern having no connection with the said Tea Co. The Periwals under the deed of partnership of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriwal in the name of the minor defendant Mohendra Kumar Periwal, but having failed in their object in the said suit ta get an injunction and/or stay of the execution proceedings, the present suit has been instituted by Gangadhar Periwal through the Garodias. 5. In the written statement the allegations made in paragraphs 7 and 8 of the plaint have been denied except the allegation that the decree-holder defendants obtained decrees from this court and executed the decrees for the realisation of their claims. The written statement was filed by the decree-holder defendants through Mr. N. K. Ray, solicitor, who is now dead. After the death of Mr. N. K. Ray the defendants Nos. 4 and 5 engaged a separate attorney, while the defendant No. 6 is being represented by the successor firm of N. K. Ray and Co. Mr. S. Hazra represents the defendants Nos. 4 and 5 and Mrs. Banerjee represents the defendant No. 6. Mr. Dutt represents the guardian-ad litem of the minor defendant Mohendra Kumar Periwal. At the trial Mr. Hazra appearing for the plaintiffs raised a number of issues. The plaintiffs tendered the evidence of Kanaiyalal Garodia. On behalf of the defendant Gourishankar Mal, one of the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tar Tea Estate and Muloctar Tea Estate in the District of Darjeeling. So also the decree obtained by Hanumanbux Chand Gotia in suit No. 1162 of 1952 was against the firm of Gangadhar Nathmull. Suit No. 3237 of 1953 is a suit instituted by the three minor Periwals against the other Periwals and the three decree-holder defendants in this suit, namely, Gourishankar Mal, Hanumanbux Chand Gotia and Udaichand Hazarimul. The Garodias were not impleaded as defendants. It is a partition suit of the Petiwals and the allegations made are that Gangadhar Periwal and Nathmal Periwal were carrying on joint family business as a co-partnership business and the share belonging to Gangadhar Periwal and Nathmal Periwal amounting to ten annas in the Tea Co. belonged to the joint family and not to Gangadhar and Nathmal personally. The debts contracted by Gangadhar and Nathmal and the decree obtained by the decree-holder defendants are claimed to be not binding on the plaintiffs. The tea gardens and the ten annas share of the export quota rights are alleged to belong to the joint family and were not liable to be sold in execution of the decree obtained against the partnership firm of Gangadhar Nathmal. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their presence. The properties included in Part III of the Schedule is ten annas share in the partnership firm of Garodias Periwai Tea Company, including the share in the said leasehold interests in all lands in the tea gardens. In the second partition suit an application for injunction similar to the one made in the first suit was made. On July 24, 1954 the Court refused to pass the order for injunction but directed the Official Receiver to proceed with the sale on notice to the parties. Shortly before this order was passed, on July 1, 1954 the present suit was filed by the Garodias in which another application for injunction was made by the plaintiff Garodias to restrain the decree-holders from executing the decrees. This third application also was dismissed with costs. Mr. Hazra appearing for two of the decree-holders submitted that it is clear from the above facts that all the above proceedings have been taken as a result of the collusion between the Periwals and the Garodias to harass the decree-holders. Even if the evidence is not sufficient to establish collusion and conspiracy, there is bound to be a strong suspicion that the Periwals and Garodias were acting together to pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the pleadings or had been so adjudged or if leave had been given to execute the decree against them personally. This is the express provision of Or. 21, Rule 50. In the instant case the decree-holder defendants obtained their decrees against the firm of Gangadhar Nathmal. The tea gardens and quota rights attached admittedly do not belong to the firm of Gangadhar Nathmal. The decrees therefore are not liable to be executed against Gangadhar and Nathmal personally by attachment and sale of other properties not belonging to the partnership firm of Gangadhar Nathmal but to the partners personally. Order 21, Rule 50 is a bar. In support of this contention Mr. Sen has cited an unreported decision of P. B. Mukharji, J. passed on 25-4-1956 in the case of Babulal Pachisia v. Ganpadhar Nathmull, wherein the learned Judge pointed out that the law of execution makes a difference in procedure between a decree against a firm and a decree against a partner and that a decree against a firm is not necessarily executable against a partner unless certain conditions are satisfied. The conditions have been indicated in Order 21, Rule 50 of the Code. The case that the decrees against the firm of Ganga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against co-owners who entered into a partnership agreement to carry on business with properties of which prior to the partnership they were co-owners simpliciter. Qua co-owner his share in the property is liable to attachment and sale in execution of the decree obtained against him personally. Qua partner, on the other hand, his share in the partnership can only be proceeded against by way of a charging order and no share in any of the partnership properties can be attached and sold, as clearly indicated in Order 21 Rule 49 of the Code. 10. It is necessary now first to consider the case made in the pleadings. In paragraph 7 of the plaint decree-holder defendants Nos. 4, 5 and 6 have been charged with fraud, collusion and conspiracy with the defendant Gangadhar. Fraud consists of causing wrongful attachment of 10 annas share in the tea garden including factory which belonged and still belongs to the said Tea Co. The tea company means Messrs. Garodia Periwal Tea Co. In paragraph 8 of the plaint it is pleaded that 10/16th portion of the quota rights belonging to the company was caused to be sold by the Official Receiver in execution of the decree obtained by the three decree-h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in suit No. 1196 of 1952, the Official Receiver was appointed Receiver of the export quota right in respect of the defendants' 10 annas share In the tea gardens known as Narbong Tea Estate, Sibitar Tea Estate and Mullutar Tea Estate in the district of Darjeeling. The order does not indicate that the tea estates belong to Garodia Periwal Tea Co, The decree passed on January 16, 1955 directs that the attachment do continue. The decree obtained by Hanumanbux Chandgotia against Gangadhar Nath-mull on January 16, 1953 in suit No. 1162 of 1952 is only a money decree and no proceeding in execution of this decree has been tendered in evidence. 12. In the partition suit by the Periwals claim was made that 10 annas share of Gangadhar Nathmull in Garodia Periwal Tea Co., belonged to the joint family, of which Gangadhar and Nathmull were ostensible owners. In these proceedings the only question sought to be canvassed was whether the properties of which the firm of Gangadhar Nathmull and/or Gangadhar and Nathmull were ostensible owner belonged to the joint family of Periwals. The records tendered in evidence show that the only point canvassed was whether the firm of Gangadhar Nathmull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'best evidence'. Mr. Hazra asked me not to attach any importance to the evidence of Gourishankarmull to the effect that he knew that the tea gardens belong to the Tea company. Though Gourishankarmull could never have personal knowledge, the answer he gave to QQ. 10 to 12 in-chief is due to Mr. Hazra's own mistake. This mistake on his part does not condone the plaintiffs from tendering satisfactory evidence of a fact which is the foundation of the plaintiffs' case. 15. Mr. B. N. Sen appearing for the plaintiffs, however, strenuously contended that the plaintiffs were under no obligation to prove an admitted fact. The allegation in paragraph 7 of the plaint has not been specifically denied. In fact, the decree-holder defendant tendered the evidence of Gourisankarmull, one of the decree-holders, who has himself admitted that the Tea company owned the tea gardens. The records and proceedings in the various suits prove that the decree-holders admit that the tea gardens belong to Garodia Periwal Tea Co. Having regard to these facts, I must hold that it is proved that the tea gardens and the export quota rights belonged to the partnership firm of Garodia Periwal Tea Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n proof of that essential fact. Again, in the instant case, the plaintiffs are misled because of their own pleading. They came to Court to make out a case of fraud, collusion and conspiracy and the pleading in paragraphs 7 and 8 of plaint are on that basis. The allegation we are considering now is there no doubt but not on the basis that it by itself gave rise to the cause of action in the suit. At the argument stage the case of fraud has been given a go-by and the case has proceeded on entirely a different footing that the attachment and sale are contrary to Order 21 Rule 49 and Order 21 Rule 50 of the Code. The essential fact in support of this case urged in argument is no doubt to be found in paragraphs 7 and 8 of the plaint. But this fact has not been pleaded as by itself giving rise to the cause of action. Hence the denial in the written statement is not as specific as Mr. Sen now contends it should have been. This failure to be more specific in his denial, if it is a defect at all, is attributable to the way in which this essential fact is pleaded. In my judgment, the plaintiffs are bound to prove this essential fact to substantiate their case, this essential fact not having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on behalf of the partnership firm of Garodia Periwal Tea Co. Further, on the death of Nathmal the partnership firm stood dissolved. The authority of the partners to carry on the partnership business no doubt continues for the purpose of winding up. One of such purpose is to realise the partnership assets. This authority may include the right to institute suit for the purpose of recovering the partnership assets. But what would be the form of the suit? What is the nature of the relief to be claimed? If there is already a suit for dissolution as is alleged being suit No. 2339 of 1953 in which a Receiver has been appointed, is the form of the present suit correct? These questions might have arisen and would have required an answer. These questions, however, were not seriously debated and having regard to my main decision in this suit, they need not be considered further. 20. For the reasons given above the suit fails and is dismissed. In the circumstances of this case I direct the parties other than the guardian of the minor defendant to bear and pay their own costs. The costs of the guardian will be paid by the plaintiff assessed at ₹ 730/-. - - TaxTMI - TMITax - Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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