OP(C) No. 2420 of 2019

1 OP(C) No.2420 of 2019 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 23RD DAY OF AUGUST 2022 / 1ST BHADRA, 1944 ``` ## **`OP(C) NO. 2420 OF 2019`** ``` AGAINST THE ORDER/JUDGMENT IN EA 1/2018 DATED 11.2.2019, IN EP 56/2017 DATED 5.7.2019 AND ``` ``` EA 65/2019 DATED 5.7.2019 IN EP 56/2017 IN OS 48/2016 OF SUB COURT, OTTAPPALAM ``` ## **`PETITIONER/S:`** ``` T.S.RAMASWAMY,AGED 71 YEARS,S/O.SOORYANARAYANA IYER, H.NO.20/943, SOORYAMAN VEEDU, MAIN ROAD, THRIPOONITHURA P.O., ERNAKULAM DISTRICT-682 309. BY ADVS. P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER ``` ## **`RESPONDENT/S:`** |**`1`**|**`T.BABURAJ (DIED),AGED 75 YEARS,S/O.THOMAS, THOTTATHIL HOUSE, NEDUMBASSERI`**| |---|---| ||**`P.O., ALUVA, ERNAKULAM DISTRICT-683 111.`**| |**`2`**|**`THOMAS BABU,AGED 40 YEARS,S/O.T.BABURAJ, THOTTATHIL HOUSE, NEDUMBASSERI`**| ||**`P.O., ALUVA, ERNAKULAM DSITRICT-683 111.`**| |**`3`**|**`PETER JOSEPH,AGED 46 YEARS,S/O.JOSEPH, PUNCHAPUTHUSSERIYIL VEEDU,`**| ||**`KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT-683 562.`**| |**`4`**|**`DR. ISSAC BABU,S/O T. BABURAJ, THOTTATHIL HOUSE, NEDUMBASSERY P.O, ALUVA,`**| ||**`ERNAKULAM DISTRICT.`**| |**`5`**|**`ASHA,D/O T.BABURAJ, THOTTATHIL HOUSE, NEDUMBASSERY P.., ALUVA, ERNAKULAM`**| ||**`DISTRICT.`**| |**`6`**|**`ANITHA SAJEEV`**| ||**`NANANKUDIYIL HOUSE, NETHAJI NAGAR, VETTIKUNNAM, EDAPPALLY NORTH P.O., PIN`**| ||**`682 024. (DIED)`**| ||**`ADDITIONAL RESPONDENTS 4 TO 6 ARE IMPLEADED AS LR'S OF R1 VIDE ORDER SATED`**| ||**`14/07/2021 IN I.A.NO. 1/2019.`**| |**`7`**|**`SAJEEV K. MATHEW,AGED ABOUT 52 YEARS, KAAVANAMKUDIYIL HOUSE, NETHAJI NAGAR,`**| ||**`VETTIKUNNAM, EDAPPALLY NORTH, ERNAKULAM DISTRICT, PIN - 682 024.`**| |**`8`**|**`BHASI,AGED ABOUT 30 YEARS, S/O SAJEEV K. MATHEW, KAAVANAMKUDIYIL HOUSE,`**| ||**`NETHAJI NAGAR, VETTIKUNNAM, EDAPPALLY NORTH, ERNAKULAM DISTRICT, PIN- 682`**| ||**`024.`**| |**`9`**|**`RIYA,AGED ABOUT 25 YEARS, S/O SAJEEV K.MATHEW, KAAVANAMKUDIYIL HOUSE,`**| ||**`NETHAJI NAGAR, VETTIKUNNAM, EDAPPALLY NORTH, ERNAKULAM DISTRICT, PIN- 682`**| ||**`024.`**| ||**`ADDITIONAL RESPONDENTS 7 TO 9 ARE IMPLEADED AS LR'S OF ADDL.R6 VIDE ORDER`**| ||**`DATED 14/07/2021 IN I.A.NO.3/2021.`**| ||**`BY ADVS.`**| ||**`SMT.MEENA.A.`**| ||**`SRI.VINOD RAVINDRANATH`**| ||**`SMT.M.R.MINI`**| ``` THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 19.08.2022, THE COURT ON 23.8.2022 ``` ``` DELIVERED THE FOLLOWING: ``` 2 OP(C) No.2420 of 2019 ## **C.S DIAS,J.** **--------------------------OP(C) No.2420 of 2019** **----------------------------Dated this the 23[rd] day of August, 2022.** ## **JUDGMENT** Aggrieved by the order dated 11.2.2019 (Ext P6), order dated 5.7.2019 (Ext P9) and order dated 5.7.2019 (Ext P12) in E.P No.56/2017 in OS No.48/2016 of the Court of the Subordinate Judge, Ottapalam, the Decree Holder has filed this original petition. The Judgment Debtors in the above execution petition are the respondents. 2. The petitioner’s case, in a nutshell, in the original petition is: the petitioner was the plaintiff in OS No.48/2016 of the above Court, which was filed against the respondents. The dispute between the petitioner and the respondents was settled as per Ext P2 compromise, pursuant to which Ext P3 judgment was passed. The respondents 1 and 2 had agreed to pay the petitioner an amount of Rs.8,76,68,273/- within 11 months from 3 OP(C) No.2420 of 2019 1.6.2016, with interest @ 16% per annum. Two properties were given as guarantee by the respondents. It was agreed that if there was any deficiency in the amount obtained from the sale proceeds of the properties, the petitioner could proceed against the other properties of the respondents. As the respondents had committed default in clearing their liability within the prescribed time period and they were attempting to sell the properties of their firm named ‘Blue Chip’, the petitioner filed EA No.1/2018 under Order 21 Rule 54 of the Code of Civil Procedure (in short ‘Code’) to attach the properties. The respondents filed their counter affidavit to the above application. The Execution Court, by Ext P6 order, dismissed the application holding that as the properties belonged to the firm ‘Blue Chips Mines and Industries’, they were not attachable, since there was no decree against the firm. Further, EP No.56/2017 which was filed by the petitioner, for realisation of decree amount by way of sale of the petition schedule 4 OP(C) No.2420 of 2019 properties was also dismissed by the court below, by Ext P9 order, on the finding that Ext P6 order had attained finality and, therefore, the execution petition was not maintainable. Similarly, the application filed by the petitioner under Order 21 Rule 49 (2) of the Code, to appoint a Receiver with respect to the property of the firm ‘Blue Chips Mines and Industries’ was also dismissed by Ext P12 order. Exts P6, P9 and P12 are illegal, irregular and untenable. Hence the original petition. 3. Pending the original petition, the first respondent died and his legal representatives have been impleaded as respondents 4 to 6. 4. Heard; Sri.S.V Balakrishna Iyer, the learned Senior counsel appearing for the petitioner and Sri.Krishnanunni, the learned Senior Counsel appearing for the respondents. 5. The point is whether there is any error or illegality in Exts P6, P9 and P12 orders. 5 OP(C) No.2420 of 2019 6. The petitioner had filed OS No.48/2016 against the respondents for a decree for recovery of money. The dispute was settled as per Ext P2 compromise and Ext P3 judgment was passed. 7. A reading of Exts P2 and P3 establish that the suit was between the petitioner and the respondents in their individual capacity. Alleging that the respondent failed to pay the decree debt, the petitioner had filed Ext P7 execution petition. Initially, the petitioner had filed Ext P4 application under Order 21 Rule 54 of the Code, to attach and sell the share of the respondents in the application schedule properties. The respondents 1 and 2 filed Ext P5 objection contending that the application was not maintainable, as the property sought to be attached and sold, belonged to a partnership firm named ‘Blue Chips Mines and Industries’ and the firm was not a party to the suit. 8. The court below accepted the objection of the respondents 1 and 2 and dismissed the application. 6 OP(C) No.2420 of 2019 Subsequently, on the basis of the findings rendered in Ext P6, which had attained finality, the court below dismissed the execution petition as not maintainable, as the prayer was to proceed against the property of the firm. Similarly, by Ext P12 order, the court below also dismissed the application filed under Order 21 Rule 49(2) of the Code, to appoint a Receiver. 9. On an analysis of the pleadings and materials on record, there is nothing on record to establish that the properties sought to be attached and sold, to realise the decree debt, belongs to the respondents 1 to 3. On the contrary, the respondents 1 to 3 have substantiated that the property sought to be attached belongs to the firm ‘Blue Chips Mines and Industries’. Undisputedly, the said firm is not a party to the suit. 10. This Court in **Sobhana v. Catholic Syrian Bank Ltd** [1989 KHC 45], while interpreting Order 21 Rule 49 of the Code, has categorically held, in the execution of a decree obtained against a partner in his 7 OP(C) No.2420 of 2019 personal capacity, the property of the partnership firm cannot be attached although an order charging the interest of such partner in the partnership property as contemplated under Clause 2 of Rule 49 of the Code can be passed. An attachment of partnership property in violation of the provisions under Rule 49 of Order 21 would be bad in law. 11. The ratio in the above decision squarely applies to the facts of the case at hand. The petitioner has attempted to attach the property of the firm for the personal liability of the respondents 1 and 2. The same is impermissible in law. Even going by the relief sought for in Ext P7, the same is also against the property of the firm. Furthermore, to make matters worse, it is on record, the first respondent is now no more and the firm stands dissolved by virtue of Sec.42 of the Indian Partnership Act, 1932. In the above factual and legal background, I have no hesitation to hold that there is no error or illegality in 8 OP(C) No.2420 of 2019 Exts P6 , P9 and P12 orders passed by the court below warranting interference by this Court under Article 227 of the Constitution of India. Without prejudice to the right of the petitioner to work out his remedies, in accordance with law, the original petition is dismissed. sks/20.8.2022 **SD/- C.S.DIAS, JUDGE** 9 OP(C) No.2420 of 2019 ## **`APPENDIX OF OP(C) 2420/2019`** |`PETITIONER EXHIBITS`|| |---|---| |`EXHIBIT P1`|`A TRUE COPY OF THE PLAINT DATED`| ||`04.06.2016 IN OS NO.48 OF 2016 ON THE`| ||`FILE OF THE SUB COURT, OTTAPALAM.`| |`EXHIBIT P2`|`A TRUE COPY OF THE AGREEMENT DATED`| ||`07.06.2016 ENTERED BETWEEN THE PARTIES.`| |`EXHIBIT P3`|`A TRUE COPY OF THE JUDGMENT DATED`| ||`08.06.2016 IN IS NO.48 OF 2016 ON THE`| ||`FILE OF THE SUB COURT, OTTAPALAM.`| |`EXHIBIT P4`|`A TRUE COPY OF THE EA NO.1 OF 2018 DATED`| ||`03.01.2018 IN EP NO.56 OF 2017 IN OS`| ||`NO.48 OF 2016 ON THE FILE OF THE SUB`| ||`COURT, OTTAPALAM.`| |`EXHIBIT P5`|`A TRUE COPY OF THE COUNTER AFFIDAVIT OF`| ||`THE RESPONDENTS DATED 09.02.2018 IN EA`| ||`NO.1 OF 2018 I EP NO.56 OF 2017 IN OS`| ||`NO.48 OF 2016, SUB COURT, OTTAPALAM.`| |`EXHIBIT P6`|`A TRUE COPY OF THE ORDER DATED 11.02.2019`| ||`IN EA NO.1 OF 2018 IN EP NO.56 OF 2017 IN`| ||`OS 48 OF 2016, SC, OTTAPALAM.`| |`EXHIBIT P7`|`A TRUE COPY OF THE EP NO.56 OF 2017 IN OS`| ||`48 OF 2016, SUB COURT, OTTAPALAM.`| |`EXHIBIT P8`|`A TRUE COPY OF THE COUNTER AFFIDAVIT`| ||`FILED BY RESPONDENTS DATED 02.12.2017`| ||`FILED IN EP NO.56 OF 2017 IN OS 48 OF`| ||`2016 ON THE FILE OF THE SUB COURT,`| ||`OTTAPALAM.`| |`EXHIBIT P9`|`A TRUE COPY OF THE ORDER DATED 05.07.2019`| ||`IN EP NO.56 OF 2017 IN OS NO.48 OF 2016`| ||`ON THE FILE OF THE SUB COURT, OTTAPALAM.`| |`EXHIBIT P10`|`A TRUE COPY OF THE EA NO.65 OF 2019 IN EP`| ||`NO.56 OF 2017 IN OS NO.48 OF 2016 DATED`| ||`26.03.2019.`| |`EXHIBIT P11`|`A TRUE COPY OF THE COUNTER AFFIDAVIT`| ||`DATED 28.06.2019 FILED BY RESPONDENTS 1`| ||`AND 2, IN EA NO.65 OF 2019 IN EP NO.56 OF`| ||`2017 IN OS NO.48 OF 2016.`| |`EXHIBIT P12`|`A TRUE COPY OF THE ORDER DATED 05.07.2019`| ||`IN EA NO.65 OF 2019 IN EP NO.56 OF 2017`| ||`IN OS NO.48 OF 2016 ON THE FILE OF THE`| ||`SUB COURT, OTTAPALAM.`|