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Brij Behari Lal Tandon & Others v. V A.D.J. & Others - WRIT - C No. 4738 of 1985 [2006] RD-AH 1644 (23 January 2006)


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Court no. 31

Civil Misc. Writ Petition no. 4738 of 1985

Sri Brij Behari Lal Tandon vs. Vth Addl. District Judge & ors.

Hon'ble Bharati Sapru, J.

This writ petition has been filed against an order dated 18.1.1985 passed by the court below on an application under Order XXI Rule 58 C.P.C.

I have heard learned counsel for the petitioners. Learned counsel for the respondents is not present even in the revised list.

I have also perused the record and have examined the order passed by the court below wherein the court below has held that only 48% of the property of the lease-holder Sunil Sharma shall be attached.

The facts of the case are that the petitioner Brij Behari Lal Tandon became absolute owner of Paradise Cinema on 26.4.1980. He leaseD out Paradise Cinema for a period of three years in favour of one Sunil Sharma and Sudhir Sharma-respondents no. 4 and 5 on a monthly lease rent of Rs.3250/-.

The lease holders did not pay any rent after December, 1979. The petitioners therefore filed suit no. 3 of 1981 against the respondents no. 4 and 5 for the arrears of rent, mesne profit and ejectment from the said cinema. The said suit was decreed ex parte on 21.7.1981. The respondents no. 4 and 5 filed an application for setting aside ex parte decree but subsequently did not press it.

In the year 1981, the petitioners put the decree into execution as execution case no. 1 of 1981.

On 23.12.1982 the judgment debtors-respondents no. 4 and 5 entered into a compromise with the petitioners and took a joint liability to pay decretal amount of Rs.92,250/-.

Petitioners filed another suit being suit no. 1 of 1983 for realization of rent, mesne profit and ejectment of respondents no. 4 and 5 from the premises.

The second suit was also decreed in favour of the petitioners on 23.7.1984. Against this decree, the respondents no. 4 and 5 sought to file a revision. This Hon'ble court refused to stay the execution in the said revision.

On 29.9.1984 Vth A.D.J. Azamgarh, appointed an Advocate Commissioner directing him to attach the assets and properties of Paradise Cinema. The Advocate Commissioner attached the same on 30.9.1984.

On 30.10.1984 Harish Jaggi-respondent no. 2 filed an application before the Court of Vth A.D.J., Azamgarh in execution case no.2 and 4 of 1984 seeking withdrawal of attachment order dated 29.9.1984.

On 18.1.1985 Vth A.D.J., Azamgarh modified his earlier order of attachment on the application under Order XXI Rule 58 C.P.C. and only 48% of the share of Sunil Sharma shall remain attached.

I have perused the partnership deed between Sunil Sharma and Harish Jaggi. It is apparent from the reading of the partnership deed that only 48% of the share of the partnership property, was assets such as furniture, generator set and other properties of Paradise Cinema, 30% cash was put in by Harish Jaggi and rest 22% cash was put in by Girish Dhondhi, their assets were in the shape of cash alone.

The property of Sunil Sharma was confined to 48%. The court below has therefore rightly come to the conclusion that only 48% of the partnership property could have been attached as the partnership firm was not lease holder which had contracted lease with the petitioners.

There is clear finding of fact that lease was executed between the petitioners and Sunil Sharma and not with the partnership firm. Therefore the entire assets of the partnership firm could not have been attached. The only assets, which could have been attached were assets that belong to Sunil Sharma who was obliged to pay the rent to the petitioners. Therefore assets and properties owned by Sunil Sharma alone could have been attached and nothing beyond that. The reasoning adopted by the court below for modifying his earlier attachment order, is perfectly sound and justified. I see no reason to interfere with the same in proceedings under Article 226 of the Constitution.

The order dated 18.1.1985 is confirmed. The writ petition is dismissed. There will be no order as to costs.

Dated 23.1.2006



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