TaxTMI 
TaxTMI 
1994 (11) TMI 449
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..... 1 upon securing a decree of the learned Civil Judge, Senior Division, Margao, against respondent No. 3's firm, consequent upon an arbitration award which was made the rule of the Court, sought to execute the same against the assets of one of its partners, the husband of the appellant. As a result two flats and two shops from the building known as "Nascimento Anna Piedade Mansion" belonging to the appellant's husband Jose Remedios Fernandes situated in the property 'Malbhat' of Margao were attached and put to auction for the purpose of their sale in order to guarantee with their proceeds the satisfaction of the aforesaid decree. The appellant by alleging that she was the wife of the partner married to him under the regime of communion of assets and as such entitled to the right of moiety in the common properties of the couple objected to the attachment as being null and void in view of the clear provision of Article 1114 of the Portuguese Civil Code. The executing Court however was not impressed with this attempt of the appellant to release the attachment even after holding an inquiry under Order XXI, Rule 58 of the Civil Procedure Code as directed by this Court in....
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....h any issue in a suit may be tried and determined." In the case of Gambhir Mal Pandiya (since deceased) and after him his heirs and legal representatives & others v. J. K. Jute Mills Co. Ltd., Kanpur & another), [1963]2SCR190 , it was held that Order XXI, Rule 50(2) deals with executions but really is a part of the provisions relating to suits against firms contained in Order XXX and must be viewed alongside to get the true meaning of the words "the liability of such person". Order XXX permits suits to be brought against firms. The summons may be issued against the firms or against persons who are alleged to be partners individually. The suit however proceeds only against the firm. Anybody who is summoned can appear and prove that he is not a partner and never was but if he raises that defence he cannot defend the firm. Persons who admit that they are partners may defend the firm, take as many pleas as they like but cannot enter upon issues between themselves. When the decree is passed which is against the firm such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually, namely, (1) persons who appeared ....
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....er the custom of the country, except when it is solemnised in contravention of the provisions of Article 1058 Clause 1 and 2; because in such a case it is deemed that the spouses are married under the simple communion of acquired properties. 1108: The marriage as per the custom of the country consists in the communion between the spouses of all their properties, present and future, not excluded by law. 1113: The debts incurred during the subsistence of the marriage by act or contract of both the spouses, or by the husband with the consent of the wife, or by the wife with the permission of the husband, or by the wife alone in the cases where it is permitted by Article 1116, are of joint liability. Paragraph 1. Where the common properties are not enough for the payment of the debts referred to in this Article, the exclusive properties of any of the spouses shall be liable for the payment. Paragraph 2. The spouse who has been compelled to pay any of the said debts or the major part thereof through his/her exclusive properties, shall have the right to be repaid through the exclusive properties, if any, of the other spouse to the extent the payment ha....
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....#39;Costa, learned Counsel for the respondent No. 1, it is an acknowledged position in this case that the husband of the appellant is a partner of the respondent No. 3's firm entrusted even to operate its accounts. The deed of partnership clearly indicates that the husband of the appellant is not merely a sleeping partner and instead it reveals that he was active in the partnership business of the firm. As a partner of the firm he took up the work of the construction of the respondent No. 1's building and hence by reason of his activity incurred the liability which has thus a commercial activity as its source. It was therefore submitted that Article 10 is not at all attracted in this case since the liability sought to be enforced is not from the appellant's husband's moiety. Further, according to the learned Counsel, the appellant also lost the last chance to prove that the activity of her husband which is the source of liability incurred by respondent No. 3 firm, was not for the common gain of the couple when the matter was remanded to the Civil Court for the purpose of inquiry under Order XXI, Rule 15 of the Civil Procedure Code. Having failed to establish this re....