Shrawan Kumar Agarwalla vs M/s Makhanlal Harnarain

The petitioner claiming himself a partner in the partnership firm-M/s Makhanlal Harnarain is aggrieved of order dated 06.05.2009 passed in

Execution Case No. 31 of 2007. Â

Money Suit No. 31 of 1983 was instituted by  M/s Makhanlal Harnarain, a partnership firm for a decree for a sum of Rs. 2,21,367.61 together

with costs and interest, pendente-lite and future. The suit was decreed by judgment dated 24.03.1993 and a decree was prepared and sealed on

07.04.1993. Appeal filed against judgment and decree passed in Money Suit No. 31 of 1983, vide Money Appeal No. 11 of 2003 was allowed by

judgment dated 24.07.2006 and the matter was remanded to the trial Judge for fresh adjudication on issue no. 4. Finally after a decision by the trial

Judge Money Appeal No. 05 of 2007 was filed which was dismissed on contest vide judgment dated 07.02.2008. At this stage, the decree holders

instituted Execution Case No. 31 of 2007. It appears that by an order dated 10.02.2009 one of the partners in the partnership firm namely, Surendra

Kumar Agarwalla was permitted to receive a part of the decreetal amount. Aggrieved, the petitioner came to this Court in W.P.(C) No. 1347 of 2009

which was disposed of by an order dated 28.04.2009 with a direction to the executing court to proceed with execution of the decree in accordance

with law. The executing court has now permitted the said Surendra Kumar Agarwalla to receive the decreetal amount on behalf of the partnership

firm on a condition that he shall execute an indemnity bond. Â

Contending that a partner in the partnership firm is not entitled to receive the decreetal amount, Mr. Birendra Kumar, the learned counsel for the

petitioner, submits that the executing court has passed the impugned order dated 06.05.2009 ignoring order passed by the Writ Court in W.P.(C) No.

1347 of 2009. Â

As against the above Mr. R. S. Mazumdar, the learned Senior counsel for the respondent no. 1, referring to various provisions under Indian

Partnership Act, 1932 submits that once it is not disputed that Surendra Kumar Agarwalla is a partner in the partnership firm he is entitled to receive

the decreetal amount on behalf of the partnership firm. It is contended that under clause 16 of the partnership deed in case a dispute arises between

the parties the matter shall be referred to an Arbitral Tribunal and while so the dispute sought to be raised by the petitioner in the executing court

cannot be entertained by the executing court.Â

Section 9 of the Indian Partnership Act, 1932 provides that the partners are bound to carry on the business of the firm to the greatest common

advantage to the firm and to be just and faithful to each other. Under Section 12 every partner has a right to take part in the conduct of the

business. Section 13 provides that subject to contract between the partners a partner shall indemnify the firm for any loss caused to it by his willful

neglect in the conduct of business of the firm. Every partner in a firm is authorised to represent the firm, unless otherwise so provided. It is not in

dispute that the petitioner as well as Surendra                 Kumar Agarwalla are partners in the

partnership              firm- M/s Makhanlal Harnarain. By the impugned order dated 06.05.2009, the trial Judge has

permitted the said Surendra Kumar Agarwalla to receive the decreetal amount after furnishing indemnity bond with two sureties of the like amount.

He has further been directed to file an affidavit that he would deposit the entire decreetal amount in the Court within 10 days in the event he looses

the Second Appeal. A further condition is imposed upon the said Surendra Kumar Agarwalla under which he has been directed to undertake that if

the decreetal amount is not deposited by him in the Court it shall be recovered by attaching his landed properties. Â

The aforesaid conditions, in my opinion, adequately would safeguard the interest of the partnership firm. If any dispute has arisen between the

partners in the partnership firm- M/s Makhanlal Harnarain, that obviously would not be an issue which can be agitated in Execution Case No. 31 of

2007. Powers of the executing court are well defined under the Code of Civil Procedure, and the Code does not contemplate a power in the

executing court to adjudicate upon inter se differences between the partners while executing a money decree. Â

In the above facts, finding no infirmity in the impugned order dated 06.05.2009 the writ petition is dismissed.Â

I.A. No. 1640 of 2009 for amendment and addition of the parties stands dismissed.Â

Interim order dated 21.12.2009 stands vacated.Â

Let a copy of the order be transmitted to the trial court through FAX.