The interest of a partner in a partnership property cannot be sold in execution of a decree except in the manner laid down in Order 21, Rule 49, Civil Procedure Code.

( 1 ) THE respondents obtained a consent decree-against the appellant in the following terms:"it is ordered and decreed that the suit is finally decreed on admission. Let there be a decree for Rs. 1,45,722-1-9 pies. Plaintiffs do further get a decree for khas possession of the property in suit as prayed for with costs. Subsequent interest do run on the decretal dues at 6 per cent, per annum. Schedule 'b' property do remain in charge for Rs. 1,45,722-1-9 pies and that the sura of Rs. 3630-15-9 pies be paid by the defendant to the plaintiffs on account of costs of this suit with interest at six per cent, per annum from this date upto date of realisation. "

( 2 ) IN execution of the decree the respondents realised Rs. 25,000/- by sale of the Schedule B property. Thereafter, the present execution case was started by them for recovery of the balance of Rs. 1,39,028-11-6 pies and their prayer is for realisation of the amount by sale after notice to the judgment-debtor and other partners of all the interest and share of the judgment-debtor in the partnership known as and carried on under the name and style of Searsole Goal and Industries Company as per and under the registered deed of partnership dated 28-5-1950. An objection was raised under Section 47, Civil P. C. by the appellant to this prayer for execution on the ground that his interest in the partnership cannot be realised and sold in the manner as prayed for and that the only way in which the decree-holder can realise any part of the decree from the interest in the partnership is by proceeding in the manner laid down as provided in Order 21, Rule 49, Sub-rules (2), (3), (4) and (5 ). Another objection taken was that as the decretal amount was charged on certain properties, it was necessary for the decree-holders to obtain a further decree under Order 34, Rule 6, Civil P. C. before they could proceed against the other properties of the judgment-debtor.

( 3 ) THE learned Court below held that it was not necessary for the decree-holders to obtain arty order under Order 34, Rule 6, Civil P. C. as the decree was a consent decree. It also held that there was substantial compliance with the provisions of Order 21, Rule 49 (2) and (4), In this view it dismissed the objection under Section 47, Civil P. C.

( 4 ) IN appeal, it is urged before us first that the learned Court below was wrong in thinking that there was a substantial compliance with the provisions of Order 21, Rule 49 (2) and (4) as, in fact, there was not even any application filed at all under Order 21, Rule 49 (2), and necessarily there was no service of such application under Sub-rule (4 ). It is also contended that the learned Judge was wrong in thinking that it was not necessary for the decree-holders to obtain any order under Order 34, Rule 6, Civil P. C.

( 5 ) THERE is, in my opinion, no substance in the second ground. As was held by this Court in -- 'haripada Datta v. Sashi Bhusan', AIR 1928 Cal 668 (A), there was no necessity to obtain a decree under Order 34, Rule 6, Civil P. Order in a case like this where a decree was passed upon the terms of a solenama. I consider myself bound by the authority of the above decision to hold that in the present case, it is not necessary for the decree-holder to obtain a decree under Order 34, Rule 6, before proceeding against other properties.

( 6 ) THE other ground raised by the objector should however, in my opinion, succeed. Before the provisions of Order 21, Rule 49 were enacted in the Code of Civil Procedure, the law as regards the saleability in execution of shares of a partnership business was laid down in -- 'jagat Chunder v. Iswar Chunder', 20 Cal 693 (B ). It was held there that the"share of a partner in a partnership business is "saleable property" within the meaning of those words in Section 266, Civil P. C. , and can therefore be attached and sold by an execution creditor in execution of a decree against that partner. "the question is whether