K. Harilal, J.

The appellant herein is the plaintiff in Original Suit No.228 of 2012 as well as the decree holder in Execution Petition No.219 of 2012 on the files of the Sub Court, Ernakulam. The aforesaid Original Suit was filed by the appellant herein against the respondents/defendants herein, seeking a decree for realisation of an amount of Rs.4,30,00,000/- with 12% interest per annum from the date of suit. The aforesaid claim was settled between the parties and a compromise decree was passed. The above Execution Petition was filed in execution of the compromise decree.

2. The appellant filed Execution Petition No.219 of 2012 against the judgment debtors and proceeded against the attached plaint 'C' schedule property to realise the decree amount. While so, several creditors of the partnership firm filed claim petitions in the said Execution Petition. In that circumstances, the appellant filed Execution Application No.302 of 2018 in Execution Petition No.219 of 2012 for attaching the property having an extent of 38.95 Ares, owned and possessed by the 2nd respondent herein, to realise the decree amount. The learned Sub Judge was pleased to grant an order dated 05.06.2018 attaching the above mentioned property of the 2nd respondent. Aggrieved by the said ex parte interim order, the 2nd respondent filed Execution Application No.334 of 2018 for lifting the attachment already granted against his property. The court below heard both Interlocutory Applications together and passed the impugned common order lifting the attachment made earlier and thereby, allowed Execution Application No.334 of 2018 and dismissed Execution Application No.302 of 2018. The legality and correctness of the findings, whereby the court below lifted the order of attachment passed earlier in favour of the appellant have come up for consideration in this appeal.

3. Heard the learned counsel for the appellant and the learned counsel for the respondents.

4. The sum and substance of the arguments advanced by the learned counsel for the appellant is that the court below went wrong by finding that the 2nd respondent is not liable for the liability incurred much before his introduction to the firm. According to the appellant, Annexure-I copy of retirement deed, wherein the respondents have undertaken all the liabilities of the firm, was not considered, while rendering the aforesaid finding. The court below further went wrong by relying on Section 31(2) of the Indian Partnership Act, 1932 (hereinafter referred to as 'the Act'), when there was a contract contrary to Section 31(2) of the Act. Section 31(2) of the Act would come into play, where there is no contract contrary to Section 31(2). Where there is a contract between the incoming partner and retiring partner to the effect that the incoming partner shall undertake all the assets and liabilities of the existing firm, the incoming partner also would be liable for the liabilities, notwithstanding Section 31(2) of the Act, the learned counsel for the appellant contends. The learned counsel for the appellant cited the decisions reported in Central Bank of India v. Tarseema Compress Wood Manufacturing Company and Others [1997 KHC 1924] and Devaiah B.M. v. Canara Bank, Yeiwai Branch and Others [2003 KHC 3669] to fortify his arguments.

5. Per contra, the learned counsel for the respondents contends that the liabilities between the incoming partner and retiring partner of a firm is strictly governed by Section 31(2) of the Act and the contract between the incoming partner and the retiring partner is of no consequence at all, while considering the claim of the creditors. Further, the learned counsel for the respondents cited the decisions reported in Vinod Babu v. District Collector [2005(4) KLT 412] and Meenakshi Achi & Another v. P.S.M. Subramanian Chettiar & Others [CDJ 1956 MHC 266] to fortify the aforesaid argument. It is further contended that in order to make the incoming partner liable, there must be an agr