Page 88 - MA - May 2017

INDIAN PARTNERSHIP ACT

any surplus then the share of each be proceeded against and applied Furthermore, as stated above, a
partner in such surplus is applied for the satisfaction of the decretal court executing the decree cannot
in payment of his separate debts, amount. It was held by the Bombay go behind the decree. It must take
if any, or paid to him. Conversely, High Court as under while rejecting the decree, as it stands. For the
separate property of a partner is the view of the trial judge : decree is binding and conclusive
applied first in the payment of his “4. No doubt, the principles between the parties to the suit.
separate debts and the surplus, if underlying S.49 of the partnership Therefore, when a decree is made
any is utilised in meeting the debts Act have been applied when the not only against the firm but also
of the firm (see Section 49 of the question of firm debts are in issue, against the partners personally, it
Indian Partnership Act, 1932). but those have been applied in follows that by recourse to any other
18. It is clear from the foregoing principle and not by reason of the method the executing court cannot
discussion that the law, English statute. refuse to execute the decree which
as well as Indian, has, for some Section 49 has to be read along is clearly a personal decree against
specific purposes, some of which with Section 25 and if so read, it the partners.
are referred to above, relaxed its would indicate that, even while The question when such a
rigid notions and extended a limited applying the provisions of Section personal decree is not made what
personality to a firm. Nevertheless, 49, the debt by the third party can should be the procedure to be
the general concept of partnership, be recovered by proceeding against followed, is not relevant for
firmly established in both systems the partners. Before the principles determining such a position,
of Law, still is that a firm is not an underlying S.49 are pressed in aid, suffice it to say that the provisions
entity or person in law but is merely all the conditions that bear upon the of O.21 R. 50(1) of the Civil P.C.
an association of individuals and a firm principles must be available. In case are attracted when the decree is in
name is only a collective name of those of a decree which clearly makes the terms against the firm and there is
individuals who constitute the firm. debt payable by the firm as such and no personal decree against the other
In other words, a firm name is merely also by each of the defendants, who defendants who were jointed to the
an expression, only a compendious may happen to be its partners, the suit as partners.
mode of designating the persons who principle is clearly not available. 7. When the decree is made by use
have agreed to carry on business in 5. The provisions of O.21, R.50(1) of the words jointly and severally,
partnership. According to the principles of the Civil P.C. are clearly enabling there is no question of any ratable
of English jurisprudence, which we in nature and same permit a decree distribution of the liability. It is in
have adopted, for the purposes of made against a firm to be executed those cases only where the liability
determining legal rights ;there is no in the manner as is indicated by can be ratably distributed inter
such thing as a firm known to the law; cls.(a), (b),(c) thereof. That such a se among the judgment-debtors
as was said by James, L. J. in Ex parte decree could be executed against the on the terms of the decree that,
Corbett, In re Shand [1880 L.R. 14 personal property of the partners presumably, the principles of S. 49
Ch. 122.” is well settled. (See Topnmal may be available for application.
However, in the case of Nilkanth Vs.M/s.Kundomal Gangarm-AIR In all other cases the terms of the
Balppa Mangave Shop & Anr., 1960SC388 and Gajendra Narain decree is determinative of the
Vs.M/s.Raj & Co., {AIR 1982 Singh Vs.Johrimal Prahlad :AIR liability.”
BOM388}, the suit filed by the 1964 SC581). The provisions of this The Court had clearly indicated
Plaintiff was decreed by the trial Rule are not intended for making it that the Section 49 of the Act
court against the firm as well as the compulsory upon the decree-holder should be read with Section 25 of
Partners. The Partner Defendant to exhaust the remedies in the the Act and the provisions of O. 21
resisted attachment of his deposit manner laid down by cl. (A) or cl.(B) R. 50(1) of Civil Procedure Code,
amount citing Section 49 of the or cl. (C) . 1908 (CPC) govern execution of a
Indian Partnership Act, 1932. The 6. It is obvious that these enabling decree against a firm and Partners.
trial judge lifted the attachment provisions of O. 21 R. 50(1) govern Section 25 of the Partnership Act
upon the principles of the said the case of a decree which has been provides as under :
Section holding that the separate passed against the firm and not Liability of a partner for acts of the
property of the Partner should not against the partners personally. firm - Every partner is liable, jointly

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