execution by partnership firm
kapil phadte
(Querist) 25 August 2013
This query is : Resolved
1.Can a partnership firm(judgement creditor) which has ceased to exist or has failed to file status etc. Or has not adhered to any provisions of partnership act file execution proceedings.
2. Can a single partner file execution proceedings without the authorization/intimation of/to other partners (total 5 partners, 1 has died, 1 is not traceable) ?
Devajyoti Barman
(Expert) 26 August 2013
give detailed background. Looks like an academic query.
R.K Nanda
(Expert) 26 August 2013
state full facts.
kapil phadte
(Querist) 26 August 2013
A partnership firm consisting of five partners filed a suit for recovery of possession and payment of money against my client's father in 1984. though the premises belonged to the landlord he was not made a party to the suit I.e there was non joinder. Further, the landlord had a lease agreement only with one yeshwant who is a partner in the partnership firm. The landlords/owner always told my client's father that they never identified,recognized this partnership firm. This partnership was represented by a constituted attorney kashinath, brother of yeshwant ( not a partner in the firm).
Kashinath died after two years from the date of institution of suit. Although the partnership was registered there was no actual functioning. There are only two partners sitakant and laxmikant who are interested in the suit, the rest are either disinterested or not aware that the partnership exists.
There were several omissions on part of my client's father and he lost the suit in 1999. he went for first appeal and appeal was admitted in the high court. Fed up of the pendency of case he abandoned the premises in 2004. The landlords took over the possession and leased it to another lessee. They were of the opinion that the said yeshwant had never approached him for last 20 years and it was out of good relations that they had allowed my client's father to carry on with the possession of premises.
My client's father expired due to cardiac arrest in the courtroom at the high Court. subsequently due to civil amendment the suit was remanded and decided by the district court in 2012.
The fact that the landlord had taken the possession was not brought to the notice of the appellate court by either parties. The plaintiff firm succeeded in first appeal. My client moved second appeal and latter withdrew it as he realized that the it was futile proceeding and he ultimately would gain nothing. The second appeal would only revolve around established facts in the trial court and new facts could not be pleaded.
Now the partnership firm has moved execution proceedings for recovery of possession and money against my client.
Firstly, the partnership is alive only on paper. There no trace of record suggesting its liveliness.
Secondly only one partner has moved execution and that the share percentage of each partner as enumerated in partnership deed is 20%.
Thirdly the present tenant of the landlord are filing intervention in the execution proceedings as his right may be affected.
Sir, What is the fate of the said execution.
Raj Kumar Makkad
(Expert) 27 August 2013
You have not mentioned in the detailed facts about the relationship of the father of your client with the mentioned property without which nothing can be got commented and moreover, you being a senior lawyer, know our limitations without having the copies of long long litigation held in the matter. Better to consult with senior local lawyer for second opinion.
kapil phadte
(Querist) 27 August 2013
@Raj makkad : my clients father had taken over the premises from his eldest maternal uncle I.e yeshwant (in whose name the lease agreement with landlord stands) but kashinath (youngest maternal uncle was the care taker and enjoyed absolute authority. He aided and adviced yeshwant in relation to the property)
My client's father was not given any conclusive document with regards to the sale of business run in that premises by the said yeshwant and kashinath. There were some letters addressed to each which formed the part of evidence and the suit was subsequently decided.
Plz view the case only with regards to the execution in relationship with third party I.e landlord and his tenant as my client cannot plead new facts in execution.
Kindly mention the query in case of any doubt.
