The shares of common partners in a partnership firm cannot be attached in proceedings under Order 38, Rule 5, C. P. C.

( 1 ) BRIEF facts giving rise to this revision are that the plaintiff-opposite party No. 1, Late Lala mool Chand Agrawal (he died during the pendency of this revision and his heirs and legal representatives have been brought on record), had filed a suit against M/s. S. K. Agrawal and company, a partnership firm and its partners, Surendra Kumar Agrawal, Sunil Kumar Agrawal, smt. Kela Devi and Bishambhar Dayal. The suit was filed for recovery of Rs. 88,551. 50 along with interest. On an application given by the plaintiff under Order 38, Rule 5, C. P. C. an order was issued to the Superintending Engineer, Asthai National High way Khand, U. P. P. W. D. Mac Robertsganj, Kanpur, for withholding payment of Rs. 96,000/- to M/s. Bishambhar Dayal, another partnership firm and which is the applicant before this Court. The applicant filed an objection under Order 38 Rule 8, C. P. C. in which it was stated that it was a separate firm constituted of M/s, Bishambhar Dayal and his three sons, Surendra Kumar Agrawal, Sunil kumar Agrawal and Sudhir Kumar Agrawal and two outsiders, Surendra Kumar Agrawal s/o govind Prasad and Kanhaiya Lal. It was claimed that this firm had come into existence in pursuance of a deed of partnership executed on 18th August, 1972. It was this objector firm which had taken the contract with the Asthai National Highway Khand aforesaid and had deposited the security amount and apart from that considerable amount of the final bill was pending payment to it. It was alleged that the defendant firm had no concern whatsoever with this contract or with this payment and since the objector firm was not a party to the suit filed by sri Mool Chand, the order withholding payment to the objector firm was wholly invalid in law.

( 2 ) THIS objection was contested by the plaintiff and it appears that in support of their respective contentions the objector and the plaintiff filed their affidavits. After considering the same the court below has dismissed the objection and in doing so it has been influenced very much by the consideration that the defendants had been keeping on changing their business names with the intention to defeat and delay their creditors. It has further been influenced by the fact that in the objector firm Surendra Kumar and Sunil Kumar have shares of 20 Paise each and their father has a share of 10 Paise. In other words these three partners own 50 per cent share in the objector firm. The partners of the defendant firm are Surendra Kumar and Sunil Kumar, sons and Smt. Kela Devi wife, of Bishambhar Dayal. In all a sum of Rs. 3,20,000/- is payable to the objector firm from Asthai National Highway Khand aforesaid, wherein the share of Bishambhar Dayal and his two sons would be about Rupees 1,60,000/- and since only a sum of Rupees 96,000/- has been attached, it cannot be said that the rights of the other partners of the objector firm have in any way been affected. In the result, as noted above, the objection has been dismissed and the present revision has been directed against this order.

( 3 ) IT has been submitted before me on behalf of the objector that the view taken by the Court below is erroneous in law and the order suffers from jurisdictional error inasmuch as during the subsistence of the partnership the right of a partner is only to obtain such profits as fall to his share from time to time and no partner can deal with any portion of the property as his own. Reliance in this behalf has been placed on a decision of the Supreme Court in Narayanappa v. Bhaskara Krishnappa, AIR 1966 SC 1300. A three-fold submission was made before me on behalf of the plaintiff-opposite party No. 1 that Rules 49 and 50 of Order XXI provide for attachment of partnership property and execution of decree against firms. Sub-rule (1) of Rule 49 says that save as otherwise provided by this Rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed again