IMPORTANT POINT
An interest of a partner in the partnership property cannot be attached for a separate debt due from him.

K. Gnanaprakasam, Chairper-son—This Miscellaneous Appeal is directed as against the Order dated 02.12.2002 passed in IA-6 in OA-702/1996, on the file of DRT, Bangalore. In fact, this Miscellaneous Appeal was disposed of by my predecessor by Order dated 03.03.2005, and the same was challenged in W.P.No. 15371/2005 (GM: DRT) before the High Court of Karnataka at Bangalore, and the said Writ Petition was allowed by Order dated 09.11.2005 by remitting the matter to this Tribunal for fresh consideration.

2. It appears that the Respondent Banks have taken out an Application for attachment of the property in IA-2/1993, while the Suit was pending before the City Civil Judge, Bangalore, as OS No. 2311/1993, before it was transferred to the DRT and the Appellant herein viz. M/s. Shivmoni & Co. have filed an Application before the City Civil Judge, Bangalore, and thereafter, it got transferred to the DRT and taken up for enquiry in IA-6/1996 and the Application filed by the Appellant to vacate the Order of attachment was dismissed and as against the same, the present Appeal has been filed.

Facts of the case are as follows.

3. One Shree Vallabh Mohatta filed the Affidavit on behalf of the Appellant Company claiming himself as the Chief Executive of the Appellant contending that the Appellant Company is a partnership firm and the same was constituted on 06.06.1952 and was duly registered under the Indian Partnership Act, 1932. There were only two partners viz. (1) Shiv Narayan M. Mohatta and (2) Shri Moni Bose, and the said Moni Bose is the 2nd defendant in the OA. The partnership was last executed on 19.11.1959. The partnership was continued till the death of Shiv Narayan M. Mohatta, who died on 22.08.1990 and as per the Deed of Partnership, the firm would not be dissolved on the death of a partner and the heir or heirs of a deceased partner would inherit the relevant share of the deceased partner. It is further stated that the property attached belongs to the Appellant firm and not to the 2nd defendant and the Appellant firm is still subsisting and has not been dissolved. The 2nd defendant was only a partner of the firm and as such, he was not entitled to deal with any portion of that property, which belong to the Appellant partnership firm. The Appellant is also not a party to the Suit. No case has been made out for Order of Attachment and prayed for the vacation of the Order of Attachment.

4. The Respondent Banks filed objections by way of Counter to the said Application wherein they have contended that they do not admit that Shree Vallabh Mohatta is the Chief Executive of the Appellant Company and he has no authority to file the Application on behalf of the Appellant firm. They have admitted that Bhagwati Devi Mohatta is the widow and legal heir of S.M. Mohatta and there are no other legal heirs to Late S.M. Mohatta. The Respondents also do not admit the correctness and genuineness of the documents produced in the Application filed by the Appellant in the absence of original of those documents. It is also stated that the Application filed by the Appellant is not maintainable and the Order of Attachment passed was in order.

5. The DRT after taking into consideration the case of both the parties, came to the conclusion that the document relied upon by the Appellant (D7) stands in the name of Late Moni Bose and the documents relied upon by the Appellant do not advance the case of the Appellant that it belongs to the partnership and the very locus standi of the 3rd party to prosecute the Application was also doubtful as the existence of the very partnership itself was doubtful and dismissed the Petition. Hence this Appeal.

I have heard the Ld. Advocate for the Appellant and the Respondent.

6. The Ld. Advocate for the Appellant has submitted that the attached property is covered under the Sale Deed dated 27.01.1965 (Exh.D7) and the same was purchased by one of the partner viz. Moni Bose for the benefit of the partnership firm of Shivmoni &