The interest of a partner in a partnership property can be attached in execution of a decree against the partner in his individual capacity under Order 21 Rule 49 (2) C. P. C.

( 1 ) THE petitioner in these two revision petitions is and firm. They obtained a money decree in O. S. No. 115/70 on the file of the Court of the Subordinate Judge at Gudur against the respondent -judgment-debtor and execution was laid under Order 21, Rules 43, 64 and 66 C. P. C. for attachment of kis seven-annas share in M/s. Sri Rajeswari Mica Mine at Thummalathalupuru in Rapur Taluk of Nellore District, valuing it at rs. TWO lakhs, for realisation of the decree debt of a sum of Rs. 1,85,835 and odd. That execution-petition was dismissed at the SR Stage by the Lower court on the ground that the Mica Mine cannot be attached. C. R. P. 4091/80 is filed against this order. Then he filed another E. P. seeking for attachment of interest in the partnership of the judgment-debtor, but. the same was rejected and dismissed observing that "the re-presentation do not call for a fresh consideration of the matter. The issue was already decided on hearing the counsel in the previous E. P. dated 12-2-80. . . . . . . . . ". As against the said order, C. R. P. No. 4092/80 has been filed. Thus, both the revision petitions are now before the Court.

( 2 ) SRI Venkatarama Reddy, learned counsel for the petitioner contends that though in the first instance, an application under Order 21, Rule 43, 64 and 66 was filed, in fact, the relief sought for was under Order 21 rule 49 (2) C. P. C. and the Lower Court was not justified in dismissing the application. However, to cure the illegality, a fresh application was filed under Order 21 Rule 49 (2) C. P. C. specifically requesting to attach the interest in the partnership of the judgment-debtor and the Lower Court committed error in exercise of its jurisdiction in not ordering attachment of the share of the judgment-debtor in the partnership firm, Though the respondent was served, he neither appeared in person nor any vakalath was filed on his behalf. Therefore. I requested Sri S. A. Sarma, an Advocate, to assist the Court as Amicus Curiae and he has kindly accepted and rendered valuable assistance to this Court and this Court expresses its deep appreciation for the assistance rendered by him.

( 3 ) THE point that arises in these revisions is whether the seven-annas share in the assets of the partnership of the judgment-debtor in M/s. Rajeswari Mica Mines at Thummalathalupuru is liable to attachment in execution of the decree in O. S. 115/70 obtained in the individual capacity of the judgment-debtor,

( 4 ) THE facts are not in dispute. Admittedly, there is a money decree obtained against the judgment-debtor and it is also not in dispute that the judgment-debtor is a partner of M/s. Sri Rajeswari Mica Mines and that he holds seven annas share therein. In view of the admitted facts the question that arises for consideration is whether the seven annas share which is valued by the petitioner at Rupees Two lakhs is liable to attachment for realisation of the decree amount. Order 21 Rule 49 (1) and (2) postulates attachment of an interest in the partnership property. To decide the the point, it is necessary to extract the said provision viz. ; Order 21, Rule 49 (1) and (2), which reads thas:"49. Attachment of partnership property: (1) Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such; (2) The Court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property and profits with payment of the amount due under the decree, and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as