Partnership share treated as movable property in execution, while failure to substitute necessary legal representatives caused abatement.
A partner's share in a subsisting firm is treated as movable property for execution purposes under Order 21 Rule 49 CPC because the partner has no separate proprietary interest in any specific partnership asset; the share is only a right to receive a proportion after realisation of assets, discharge of liabilities, and settlement of accounts, and the presence of immovable property in the firm's assets does not alter that character. The appeal also abated in toto because necessary legal representatives of deceased respondents were not brought on record within time, and effective relief could not be granted without binding all interested parties.
Issues: (i) whether the interest of a partner in partnership assets, including immovable property, is to be treated as movable or immovable property when dealt with in execution under Order 21 Rule 49 of the Code of Civil Procedure, 1908; (ii) whether the appeal abated for failure to implead the legal representatives of deceased respondents within time.
Issue (i): whether the interest of a partner in partnership assets, including immovable property, is to be treated as movable or immovable property when dealt with in execution under Order 21 Rule 49 of the Code of Civil Procedure, 1908.
Analysis: A partner has no separate proprietary interest in any specific asset of a subsisting firm. The partner's share is only a right to receive his proportion after the firm's assets are realised, debts and liabilities are discharged, and accounts are settled. A transferee or auction-purchaser of such a share does not acquire any direct interest in the tangible partnership property; the right obtained is limited and becomes concrete only upon dissolution and liquidation. The presence of immovable property in the partnership assets does not alter the character of the partner's interest as such.
Conclusion: The interest is movable property, not immovable property, for the purposes of execution under Order 21 Rule 49.
Issue (ii): whether the appeal abated for failure to implead the legal representatives of deceased respondents within time.
Analysis: The deceased respondents were necessary parties because the sale proceeds had been distributed among the decree-holders and any order in the appeal would affect their rights. Failure to substitute the legal representatives within the prescribed time prevented effective continuation of the appeal and made it impossible to pass a binding order affecting all interested parties. The delay in one instance was unexcused and the omission in respect of the other was fatal to the proceeding.
Conclusion: The appeal abated in toto.
Final Conclusion: The court upheld the view that a partner's share in a subsisting firm is movable property for execution purposes and held that the appeal could not proceed because of abatement, leading to dismissal of the connected appeal and revision.
Ratio Decidendi: A partner's share in a continuing partnership is a right to a proportion of the realised partnership assets after liabilities are discharged, and remains movable property even where the firm owns immovable assets; failure to bring necessary legal representatives on record within time causes abatement where effective relief cannot be granted without them.
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