Made of giving public notice decided.

The above appeal is directed against the order dated 2.7.2001 made in A.S.No.7 of 2001 on the file of the District Judge, Nilgiris, at Uthagamandalam upholding the claim of the first respondent and reversing the judgment and decree dated 3.1.2001 made in E.A.No.134 of 1999 in E.P.No.32 of 1998 in O.S.No.49 of 1996 on the file of the Sub-Judge, Uthagamandalam wherein the properties of the first respondent-firm/third party/claimant were attached in lieu of the liability of the second respondent/judgment-debtor/defendant in the suit O.S.No.49 of 1996.

2.1. Admittedly, the appellant/decree-holder/plaintiff obtained a decree against the second respondent/judgment-debtor/defendant in O.S.No.49 of 1996, who was a partner in the first respondent-firm, under a partnership by contract during the period 1.11.1989 to 22.6.1996.

2.2. Even though the Execution Court dismissed the claim of the first respondent/third party/claimant and refused to raise the attachment by an order dated 3.1.2001 made in E.A.No.134 of 1999 in E.P.No.32 of 1998 in O.S.No.49 of 1996, on appeal the learned District Judge, Nilgiris by judgment and decree dated 2.7.2001 made in A.S.No.7 of 2001 upheld the claim of the first respondent-firm, taking note of the fact that the second respondent/judgment-debtor/defendant ceased to be a partner of the first respondent-firm with effect from 22.6.1996, whereas the properties of the first respondent-firm/third party/claimant were attached only on 12.7.1996. Hence, this civil miscellaneous second appeal.

3. Mr.R.Balakrishnan, learned counsel for the appellant/decree-holder/plaintiff challenges the judgment and decree dated 2.7.2001 made in A.S.No.7 of 2001 on the file of the District Judge, Nilgiris, at Uthagamandalam, on the following substantial questions of law:-

(i) Whether the lower Appellate Court is correct in holding that the present claim petition is not barred under Section 11 of C.P.C., when, the matter directly and substantially in issue, in this claim petition had been directly and substantially in issue in the former proceedings in I.A.No.391 of 1996?

(ii) Whether the lower Appellate Court is correct in allowing the appeal on the ground that the second respondent/judgment-debtor had retired from partnership on 22.6.1996 and attachment was effected on 12.7.1996 when no public notice was given as contemplated under Section 72 of Indian Partnership Act, 1932 to bind the third party, viz., the plaintiff/appellant herein?

4.1. Question:1 - Whether the lower Appellate Court is correct in holding that the present claim petition is not barred under Section 11 of C.P.C., when, the matter directly and substantially in issue, in this claim petition had been directly and substantially in issue in the former proceedings in I.A.No.391 of 1996?

4.2. Concededly, when the order of attachment was made on 12.7.1996, the first respondent-firm was not at all a party to the suit. Therefore, the contention that the first respondent/third party/claimant failed to make an objection to the order of attachment dated 12.7.1996 is not tenable in law, as the failure by the first respondent/third party/claimant to object the order of attachment shall not amount to res judicata.

4.3. In that view, the first substantial question of law is answered against the appellant.

5.1. Question:2 - Whether the lower Appellate Court is correct in allowing the appeal on the ground that the second respondent/judgment debtor had retired from partnership on 22.6.1996 and attachment was effected on 12.7.1996 when no public notice was given as contemplated under Section 72 of Indian Partnership Act, 1932 to bind the third party, viz., the plaintiff/appellant herein?

5.2. I am inclined to refer the relevancy of the public notice contemplated under Section 72 of the Indian Partnership Act, 1932 (for brevity "the Act"). Section 72 of the Act reads as follows:

"Section:72 - Mode of giving public notice:- A public notice under this act is given:

(a) where it relate