Authored By : Macpherson, Beverley

Macpherson and Beverley, JJ.

1. The sole question in this appeal is whether an executioncreditor can attach and sell in execution of his decree, the share of hisdebtor in a partnership business. The decree-holder in this case applied forthe attachment of a two-anna share belonging to the judgment-debtor in twotrading firms, and the District Judge, after issuing notice of attachment,rejected the prayer for sale on the ground that a share in a partnershipbusiness could not be sold in execution of a personal decree against thepartner. We are of opinion that this decision cannot be sustained. It is truethat in the case of Dwarika Mohun Das v. Luchimoni Dasi I.L.R. Cal. 384 it washeld that a debt alleged to be due from one partner to another could not beattached and sold. But that case did not go so far as to lay down that a sharein a partnership business could not be attached and sold in execution of adecree against one of the partners, provided that the execution proceeded in aproper manner. That case was in fact decided upon the authority of the case ofTuffuzzul Hossein Khan v. Raghu Nath Pershad 7 B.L.R. 186 : 14 Moo. I.A. 40 inwhich their Lordships of the Privy Council held that a claim as between twopartners which had been referred to arbitration could not under the peculiar circumstancesof that case be attached and sold in execution of a personal decree against oneof the partners. It has nowhere, however, been laid down by the JudicialCommittee of the Privy Council that the interest of one of the partners in afirm cannot be attached and sold in execution of personal decree against thatpartner. On the contrary, in the case of Deendyal Lal v. Jugdeep Narain SinghI.L.R. 3 Cal. 198 : L.R. 4 IndAp 247 their Lordships remarked as follows:

But, however nice the distinction between the rights of apurchaser under a voluntary conveyance and those of a purchaser under anexecution sale may be, it is clear that a distinction may, and in some casesdoes, exist between them. It is sufficient to instance the seizure and sale ofa share in a trading partnership at the suit of a separate creditor of one ofthe partners. The partner could not himself have sold his share so as tointroduce a stranger into the firm without the consent of his co-partners, butthe purchaser at the execution sale acquires, the interest sold, with the rightto have the partnership accounts taken in order to ascertain and realize itsvalue.

2. As a matter of fact, the interest of a partner in apartnership business is liable to be seized and sold in England in execution ofa personal decree against that partner in favour of third parties, and there isnothing in the Code of Civil Procedure which in our opinion operates to preventa similar course of proceeding in this country. We think, too, that the wordsin Section 266 of the Code, "saleable property, moveable or immovable,belonging to the judgment-debtor," are sufficiently wide to include theinterest which he possesses in a partnership business. It is true that, aspointed out by the Privy Council, the partner could not have himself sold hisshare so as to introduce a stranger into the firm without the consent of hisco-partners; but the share might be sold with their consent; it may be sold bythe Court. We therefore think that it is "saleable property" withinthe meaning of the words in Section 266. If this were not so it is clear that aperson by entering into a partnership might secure for himself completeimmunity as against his private creditors. The case of Parvatheesam v. BepannaI.L.R. Mad. 447, to which reference has been made in the course of theargument, was in some respects different from the present. In that case thepartnership had been dissolved by the death of one of the partners, and acreditor in execution of a decree against the son of that deceased partnerattached and brought to sale, and himself purchased, the right which the sonhad to sue for an account and to recover what might be found due to the estateof his father. The Court held that the sale was good in law, and that thepurchaser was entitled to sue for an account and to receive such sum as mightbe found due to the partnership account. In the present case the partnership isapparently still subsisting, and we think that the decree-holder is entitled toattach the partnership property, that is to say, the two shops mentioned in theapplication. If the decree is not satisfied, he may proceed to put up to salethe two-anna share in the partnership business which it is alleged belongs tohis judgment-debtor. If any such sale takes place, it will then be open to thepurchaser or to the other partners to apply to have the partnership businesswound up and the accounts taken. Meanwhile all that we need decide is that thepartnership property may be attached in this case and the share of the judgment-debtorbrought to sale. We accordingly allow the appeal with costs and reverse theorder of the District Judge, dated 3rd March 1892.

.

Jagat Chunder Roy and Ors.vs. Iswar Chunder Roy (28.03.1893- CALHC)