P.R. RAMAN v. K. MOHANAN, JJ

BY ADV. SRI.K.S.BHARATHAN SRI.MANOJ SUBRAMANIAN RESPONDENTS: RESPONDENT ----------------------- A.R.JYOTISH,S/O. AYNIKKADAN RAMAKRISHANAN, PANANCHERY VILLAGE, MUDIKKODU DESOM, THRISSUR. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = FAO NO. 287 OF 2007 = = = = = = = = = = = = = = = DATED THIS, THE 8TH DAY OF JANUARY, 2008. Raman, J. J U D G M E N T This is an appeal at the instance of the defendant against an order of attachment passed in I.A. 1103/2007 in O.S. 177/2007 on the file of the Principal Subordinate Judge's Court, Irinjalakuda. The application was filed for attachment before judgment of the petition schedule property, which according to the appellant, is a property belonging to a partnership firm in which he is a partner. But the court below, merely stated that the partnership property is not exempted from attachment and ordered attachment, since the petitioner failed to furnish security.

Though we issued notice and service is complete, none entered appearance on behalf of the respondent. We heard the learned counsel or the appellant.

The question that arises for consideration is as to whether the immovable property belonging to a partnership firm which is in subsistence could be attached in an action against a partner of it.

In this connection, learned counsel placed reliance on the decision FAO 287/2007 :2: reported in Narayanappa v. Bhaskara Krishnappa (AIR 1966 SC 1300) wherein it was held as follows: "During the subsistence of the partnership, however, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to anyone. His right is to obtain such profits, if any, as fall to his share from time to time and upon the dissolution of the firm to a share in the assets of the firm which remain after satisfying the liabilities set out in Clause (a) and sub-cls. (i), (ii) and (iii) of Cl. (b) of Section 48. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. "

In this case, the petition schedule property is immovable property belonging to the firm and not a trading asset. In the circumstances, following the decision of the apex court cited supra, the order of attachment passed against the petitioner in respect of a partnership property in which he is only a partner cannot be sustained. Hence we set aside the order and allow this appeal. FAO 287/2007 :3: However, it is open to the respondent to seek appropriate remedies seeking attachment of the trading asset or profit of the petitioner from the partnership firm or any other property belonging to him and this order will not stand in his way of seeking such reliefs. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) knc/-