9911796707
TMI Blog1994 (11) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... 40/94 on 20th June, 1994, the appellant's application for setting aside the attachment and sale made of certain properties purportedly belonging to the appellant and her husband in execution application filed by the respondent No. 1 decree-holder against the respondents No. 2 and 3, the judgment-debtors. 2. It is not necessary to recapitulate all the facts in this case and suffice is to say that the respondent No. 1 upon securing a decree of the learned Civil Judge, Senior Division, Margao, against respondent No. 3's firm, consequent upon an arbitration award which was made the rule of the Court, sought to execute the same against the assets of one of its partners, the husband of the appellant. As a result two flats and two shops ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order of the learned Civil Judge has advanced two sets of submissions. It was firstly contended by the learned Counsel that having regard to Order XXI, Rule 50(1) and (2) of the Civil Procedure Code and since in this case no leave was sought for by the respondent No. 1 under sub-rule (2), the attachment in sale of the joint property cannot be sustained. We are afraid that, irrespective of the merits of this contention, no such submission is available to the appellant in this regard. Admittedly, the appellant is not a partner of the respondent No. 3's firm in respect of whose liability the respondent No. 1 sought to execute the decree against the assets of one of its partners, namely the husband of the appellant Jose Remedios Fernan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suits to be brought against firms. The summons may be issued against the firms or against persons who are alleged to be partners individually. The suit however proceeds only against the firm. Anybody who is summoned can appear and prove that he is not a partner and never was but if he raises that defence he cannot defend the firm. Persons who admit that they are partners may defend the firm, take as many pleas as they like but cannot enter upon issues between themselves. When the decree is passed which is against the firm such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually, namely, (1) persons who appeared in answer to summons served on them as partners and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the provisions of the Portuguese Civil Code. 7. Mr. Usgaokar has drawn our attention to several provisions of the Portuguese Civil Code and the Portuguese Commercial Code to drive out his point that no liability can be demanded in this case from the joint assets of one of the partners of the firm who is married under the regime of communion of assets. He has taken us through Articles 1096, 1097, 1098, 1108 and 1113 of the Portuguese Civil Code which reads thus:- 1096: It is lawful for the spouses to stipulate, before the solemnisation of the marriage and within the bounds of law, whatever they think fit in respect of their properties. 1097: Such contracts shall not be valid, unless they are recorded by way of public deed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the payment of commercial debts of the husband which have to be made from his moiety of the common properties may be demanded before the marriage is dissolved or before there is a separation, the wife however, having to be given notice to seek in this separation within ten days immediately after the date. In its turn Article 15 lays down that the debts originating from the commercial acts contracted solely by the businessman husband without the consent of the wife shall be presumed to be for the common of the couple. 8. The second submission of the learned Counsel in this connection is that the liability for breach of agreement sought to be enforced against partners is always a civil liability and not a commercial one. It was conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase that the husband of the appellant is a partner of the respondent No. 3's firm entrusted even to operate its accounts. The deed of partnership clearly indicates that the husband of the appellant is not merely a sleeping partner and instead it reveals that he was active in the partnership business of the firm. As a partner of the firm he took up the work of the construction of the respondent No. 1's building and hence by reason of his activity incurred the liability which has thus a commercial activity as its source. It was therefore submitted that Article 10 is not at all attracted in this case since the liability sought to be enforced is not from the appellant's husband's moiety. Further, according to the learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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