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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G. JAYACHANDRAN, J.
K.T.V. Handloom Centre, Rep. by its Partner, K.V. Ramamoorthy, S/o. Vasudeva Iyer & Ors. - Petitioners
Vs.
Seenivasa Investments, Rep. by its Managing Partner, K.G. Ramasamy - Respondent
CRP(NPD)(MD) No.6 of 2016 and CMP(MD) No.612 of 2017
Decided On : 03-04-2017
Execution Court - Proclamation of Sale - Order XXX, Order 21 Rule 50 CPC - The judgment discusses the proclamation of sale of immovable property pursuant to a money decree against a partnership firm and its partners. It interprets the provisions of Order XXX and Order 21 Rule 50 CPC, emphasizing the impleading of legal representatives in case of death of a partner and the conditions under which the sale can proceed without prejudice to the legal representatives. The court's decision is influenced by the interpretation of these provisions and the conduct of the parties involved.
Fact of the Case:
The revision petition challenges the proclamation of sale of immovable property following a money decree against a partnership firm and its partners. The petitioners argue that the proclamation of sale is illegal and contrary to law due to the death of one of the partners and the failure to implead the legal representatives.
Finding of the Court:
The court found that the Execution Court had considered the death of the partner and had consciously held that the legal representatives of the deceased partner are needless to be impleaded, and no prejudice would be caused to them if the execution proceedings proceeded without impleading them. The court also noted the abuse of process of law by the revision petitioners and dismissed the petition with costs.
Issues: The issues revolve around the legality of the proclamation of sale following the death of a partner, the impleading of legal representatives, and the abuse of process of law by the revision petitioners.
Ratio Decidendi: The court's decision is based on the interpretation of Order XXX and Order 21 Rule 50 CPC, emphasizing the conditions under which the sale can proceed without impleading the legal representatives and the abuse of process of law by the revision petitioners.
Final Decision: The Civil Revision Petition is dismissed with costs payable to the decree holder, and the interim stay is vacated.
This revision petition is directed against the order dated 22.12.2015 passed by the Execution Court, proclaiming sale of immovable property mentioned in the petition schedule pursuant to the money decree passed on 20.04.2006 in O.S.No.232/04.
2. The case of the revision petitioners/defendants 1, 2 and 4 is that the decree was passed against the partnership firm and its partners for recovery of money towards goods sold and delivered. The proclamation of sale was ordered on 22.12.2015, fixing the sale date as 11.01.2016. Before the proclamation order passed, the 3rd defendant/K.K.Ramachari died and the same was intimated to the Court by way of a Memo. The Execution Court without impleading the legal representatives of the deceased 3rd defendant/judgment debtor, had ordered proclamation of sale and fixed date for sale, which is bad in the eye of law. Since the proclamation of sale is against the interest of a dead person, the order is liable to be set aside.
3. The learned counsel for the revision petitioners submitted that for the debt of the firm, the Trial Court held, both the firm and its partners are jointly and severally liable. The decree holder has proceeded against the personal property of the partners, while so, without impleading the legal heirs of the deceased partner, proclamation of sale is illegal and contrary to law.
4. Per contra, the learned counsel for the respondent/decree holder submits that in the Memo filed by the revision petitioners dated 04.12.2015, informing the death of the 3rd defendant/K.K.Ramachari on 09.11.2015, the Execution Court has passed order on 14.12.2015, stating that the Memo is only to record the death of the 3rd defendant and not to postpone the auction sale. Further, in the claim petition filed in E.A.No.6/2009, only a meagre share in the property is claimed by the 3rd defendant. Hence, no prejudice will be caused to the legal representatives of the 3rd defendant.
5. The sale fixed on 14.12.2015 could not fructify since there was no bidders. A memo was filed on behalf of the decree holder, stating that the legal representatives of the deceased 3rd defendant need not be impleaded, in view of the judgment reported in AIR 1997 SC 257, Anokhe Lal vs. Radhamohan Bansal and others. The Execution Court accepting the same, fixed the auction by 11.01.2016.
6. Suppressing the orders passed by the Execution Court on 14.12.2015 and 17.12.2015, the revision petitioners have approached this Court with unclean hands and obtained ex parte stay of auction, causing grave prejudice to the decree holder. The execution of the decree of the year 2006 is prevented by the judgment debtors under the wrong pretext or by making false claim.
7. In the earlier occasion, this Court dismissed the other judgment debtors' revision petition with cost Rs.25,000/-. The true intention of the judgment debtors is to protract the proceedings. Therefore, through one or other persons, they make frivolous claim and have successfully depriving the decree holder from reaping the fruits of the decree.
8. The law governing suits against partnership firm and execution of decree against a partnership firm is broadly covered by the following provisions of law:-
''(i) Order XXX- Suits by or against firms and persons carrying on business in names other than their own:-
1. Suing of partners in name of firm– (1) Any two or more persons claiming or being liable as partners and carrying on business, in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.
(2) Where persons sue or are sued partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or othe
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