A decree made jointly and severally against a firm and its partners can be executed against the separate property of a partner without first proceeding against the property of the firm.

JUDGMENT - Masodkar B.A. J. -By this petition the challenge is to the order made by the Civil Judge, Senior Division, Kolhapur, raising the attachment with regard to an amount of Rs. 16,000 to 17,000 which was attached in execution of a decree passed in the suit, being Special Civil Suit No. 206 of 1973. That decree reads as follows:

“Plaintiff's suit against defendants 1 to 6 is decreed in the sum of Rs. 93,971.78Ps. with future interest on Rs. 93,871.78 Ps. At 6% per annum from the date of this suit till the realisation of the entire amount herein. Defendants 1 to 6 jointly and severally shall pay all this amount to plaintiff firm by bearing its costs of this suit in addition to their own. Decree shall be drawn accordingly,”

2. It is not in dispute that the amount that was attached was the deposit belonging to Judgment-debtor No.4 and was available for attachment. After the attachment, said judgment-debtor No.4 filed an objection which has been decided in his favour and attachment has been lifted. By the impugned order, the learned trial Judge held that the decreta} amount was a joint debt due from the firm and upon the principles underlying section 49 of the Indian Partnership Act, 1932, the separate property of the partner should not be proceeded against till the property of the firm is first proceeded against and applied for the satisfaction of the decretal amount. That view of law is under challenge in the present petition.

3. Now, as far as the decree is concerned, it makes the decretal amount jointly and severally payable. Primarily, therefore, such a decree has to be executed as is ordered and made payable and that shows that not only the liability is joint but several against each of the defendants. The executing Court is bound to execute the decree as it is made. Had there been any other direction in keeping with the principles underlying section 49 of the Indian Partnership Act, the question would have been different. In the present case, the decree clearly makes each of the defendants severally liable to pay and satisfy the decretal amount.

4. No doubt, the principles underlying section 49 of the Indian Partnership Act have been applied when the question of firm debts are in issue, but those have been') applied in principle and not by reason of the statute. Section 49 has to be read along with section 25 of the Indian Partnership Act and, if so read, it would indicate that, even while applying the provisions of section 49, the debt by g1e third party can be recovered by proceeding against the partners. Before the principles underlying section 49 are pressed in aid. all the conditions that bear upon the principles must be available. In case of a decree which clearly makes the debt payable by the firm as such and also by each of the defendants, who may happen to be its partners, the principle is clearly not available, for it is not as if that in every case where the debt is of the partnership and the decree is made joint and several against the firm as well as the partners of the firm, such principle would hold good in the matter of execution of a decree in favour of a third party. If such a principle were to be universally applied, several complications will arise in the matter of execution of the decree which is obtained by the third party who is not concerned with the inter se rights and obligations of the firm and its partners. In fairness and in law, therefore, the matter must depend on the terms of a given decree. What 1S required to be executed is the decree as such and, if the term is clear that the same is liable to be executed even severally, then the executing Court cannot refuse the execution on the ground that the firm is made liable and it should be first proceeded against.

5. The provisions of Order XXI, Rule 50(1) of the Code of Civil Procedure are clearly enabling in nature and the same permit a decree made agains a firm to be executed in the manner as is indicated by Clauses (a), (b) and (c) thereof. Th

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