ORDER: These are the two applications which are heard together by consent of parties. One of the applications is in the suit of State Bank of India against Nu Built Furniture Private Limited (In Liquidation) and other being the Suit No 423 of 1971 The decree in this suit was passed on the 7th December, 1983 and this application has been made in execution of the said decree The other application is also for execution of the decree passed in the suit of Nu Built Furniture Co. against State Bank of India being suit No. 673 of 1981. 2. In the execution application made by State Bank of India in its suit prayers have been made• inter alia, for adjustment of the decretal dues of Nu Built Furniture Co. in Suit No. 673 of 1981 for the sums which represents the shares and, interests of the judgment debtors Nos. 2 and 3 in the Stale Bank of India's suit being 90% of the interest of the said judgment debtors in the firm Nu Buiit Furniture Co. and for further directions for execution of the balance. The other prayer is that the interest of the Judgment debtors Nos. 2 and 3 namely Kumar Kasyab and Mahendra Kumar Kasyab in the said firm of Nu Built Furniture Co. be determined and leave be granted to serve notice all the said firm on behalf of all the partners Such notice has already been served and all the partners are before the Court. The other material prayer is that the properties and assets being furniture, stock-in-trade etc and profits of the firm Nu Built Furniture Co. be attached and a Receiver be appointed over the same to take possession thereof with direction to sell the same to the extent of the interest of the judgment debtors No. 2 and 3 of 90% or so much that may be found upon enquiry by this Court and Receiver be directed to pay the net sale proceeds to the plaintiff decree holder State Bank of India in pro tanto satisfaction of its claim. 3. Mr. Suresh P. Majumdar, learned counsel for the decree holder State Bank of India submitted that the State Bank's suit was against the company in Liquidation and guarantors. The defendants nos. 2 and 3 namely, Kumar Kasyab and Mahendra Kumar Kasyab were the guarantors. 3. Mr. Suresh P. Majumdar, learned counsel for the decree holder State Bank of India submitted that the State Bank's suit was against the company in Liquidation and guarantors. The defendants nos. 2 and 3 namely, Kumar Kasyab and Mahendra Kumar Kasyab were the guarantors. They are partners of the firm Nu Built Furniture Co. and held 90% shale in the firm that is Kumar Kasyab 50% and Mahendra Kumar Kasyab 40% The affidavit-in-opposition filed in this application on behalf of the defendants by Rakesh Kasyab affirmed on 13th December, 1984 wherein a copy of the deed of partnership dated 18th December, 1973 constituting the firm Nu Biut Furniture Co. has been annexed, discloses that Kumar Kasyab also known as Bhupendra Kumar Kasyab has 50% share in the said firm as the Karta of his Mitakshara Hindu undivided family while Mahendra Kumar Kasyab as such Karta of his Mitakshara Hindu undivided family has 40% share in the said firm. It was submitted by Mr. Majumdar that the individual share of the said Kumar Kasyab and Mahendra Kasyab even though they were Kartas of the Hindu undivided family would be answerable for the claim of the bank, In support of his contention Mr. Majumdar cited two decisions of the Privy Council. (i) Deen Cayal Lal v. Jugdeep Narain Singh reported in 4 Indian Appeal 247. Here the rights and proprietory and Mokurruri title and share of a Hindu father in the joint family estate under the Mitakshara Law having been seized and sold in execution of a decree against the father, possession of the whole estate was delivered to the appellant as the purchaser. The son of the judgment debtor filed a suit to recover the same on the ground that the said properties could not be sold in execution proof of legal necessity for the debt. It was held by the Judicial Committee that assuming that a member of a Mitakshara joint family might not dispose of his share in the joint estate by voluntary conveyance without concurrence of his coparceners, yet the appellant, as the purchaser at an execution sale of such share, was entitled to ascertain the same by such partition as the judgment debtor might have compelled before the alienation of the share took place. 4. (ii) Suraj Bunsi Koer v. Sheoprashad Singh reported in 6 Indian Appeal 88. 4. (ii) Suraj Bunsi Koer v. Sheoprashad Singh reported in 6 Indian Appeal 88. Here, an ex parte money decree was obtained against a Hindu governed by the Mitakshara School of Hindu law and in execution thereof the ancestral immovable estate was attached but prior to the execution the judgment debtor died and his infant sons and co-sharers having filed a petition of objection, were referred to a regular suit In the suit the infants claimed for adjudication of the right to and confirmation of possession of the property sold in execution in the meantime and to have the mortgage loan, the ex parte decree and execution sale set aside. It was found that the father incurred the debt without legal necessity. It was held by the Judicial Committed that as regards the judgment debtor's undivided share in the estate sold, whether or not his own alienation was valid under the law, the effect of the execution sale being transfer of the said share to the purchaser, the execution proceedings under which the property had been attached and ordered to be sold had gone so far as to constitute in favour of the judgment creditor a valid charge upon the property sold, to the extent of the share or interest therein of the judgment debtor, which could not be defeated by the judgment debtor's death before the actual sale The Judicial Committee relied on its earlier decision in Deen Dayal Lal's case (supra). Their Lordships of the Privy Council observed that the purchaser of undivided property at an execution sale during the lifetime of the debtor for his separate debt does acquire such share in such property with the power of ascertaining and realising it by a partition and it was held that notwithstanding the death of the judgment debtor the respondents were entitled to work out the rights which they have thus acquired by means of partition. The above two decisions of the Privy Council were cases where the properties have already been attached and sold and upon objection by the other co-parceners in suits filed by them challenging the sale it was held that the sale affected only the share of the judgment debtor and the creditor was entitled to ascertain the same by partition. In Mt Muneswari and others v. Sm. In Mt Muneswari and others v. Sm. Jugal Mohini Dashi reported in AIR 1952 Calcutta 368, a Division Bench of this Court observed that an attachment of the undivided share of a member of a Mitakshara joint family during his lifetime operated as a division of interest and caused a severance of the status Thus it appears that the interest which passes to the purchaser at an execution sale is that which the judgment debtor would get if a partition was made at the time of the sale. It follows therefore that the interest of the judgment debtor would neither be diminished by an increase nor be increased by diminition in the number of co-parceners. If a creditor attaches the entire property as belonging to the judgment debtor whereas the latter had only a share in it or attaches a larger share than the judgment debtor has, the attachment would be effective on1y to the extent of the share of the judgment debtor in the joint family property but if will nevertheless be effective There is, thus, no reason why the attachment of a larger share will not have the effect of causing a partition if it is otherwise effective as an attachment of the actual share and if it carries with it all the incidents of a valid attachment to that extent. Mr. Majumdar in this context also cited Ss. 4, 6 and 30 of the Hindu Succession Act. He also cited certain passages from Mulla on Hindu Law to show what was the old law and how it has been affected by the Hindu Succession Act, 1956. To my mind the matters which are dealt with in the said sections of the Hindu Succession Act or in the passage referred to by Mr. Majumdar in Mulla's Hindu Law has little hearing on the question which is mooted before me. Mr. Majumdar also submitted that the bank paid 10 percent of the claim of the Nu Built Furniture Co, the firm, in the application made by the said firm under Chapter 13A of the Original Side Rules of this Court which represents the sum of Rs. 62,000/- which was directed to be deposited by the Bank with its own advocates-on-records M/s. Sandersons and Morgans to be kept by them in fixed deposit account with a nationalised bank and to be held by them until further orders of this Court. 62,000/- which was directed to be deposited by the Bank with its own advocates-on-records M/s. Sandersons and Morgans to be kept by them in fixed deposit account with a nationalised bank and to be held by them until further orders of this Court. Mr. Majumdar submitted, that Kumar Kasyab and Mahendra Kumar Kasyab were not partners of the firm Nu Built Furniture Co. in their individual capacities, but as the Kartas of their respective joint Mitakshara families was for the first time raised and disclosed in the affidavit in opposition in this application. The said facts were not at all known to the petitioner Bank Mr. Majumdar also explained the delay in making this application by the Bank and in proceeding with the suit. As the defendant company had gone into liquidation leave of the winding up court had to be obtained and only thereafter the Bank proceeded with the suit. The bank had also preferred a claim before the official liquidator. The Official Liquidator soid the securities of the company in liquidation and paid certain dividends to the Bank for which credit has been given to the judgment debtor and then this application has been made for the balance of the claim. It was also urged by Mr. Majumdar that the decretal claim of the Bank is much larger than that of the decretal claim of the firm Nu Built Furniture Co although a legal set off under the provisions of Order 21 rule 18 of the C. P. Code was not strictly allowable, but because some of the parties in both the suits were common, therefore an equitable set off could he allowed to the Bank. in set ting off such portion of its decretal dues against the dues of the firm Nu Built Furniture Co. or of the two partners thereof, viz, Kumar Kasyab and Mahendra Kumar Kasyab who are defendants in the Bank's suit as guarantors Mr. Majumdar relied on a decision of the Andhra Pradesh High Court in Bhoganadham Sheshaish v. Budhi Veerabhadrayya (died) & Ors reported in AIR 1972 A.P. 134 . 5. I do not think that the said decision has any application to the facts and circumstances of this case. In any event, this is not a case where an equitable set off could be granted. 6. Mr. 5. I do not think that the said decision has any application to the facts and circumstances of this case. In any event, this is not a case where an equitable set off could be granted. 6. Mr. Hirak Mitra, learned Counsel for the respondents contended on the other hand, that the execution application of the Bank is bristled with legal defects and law points at every stage He urged that here two Kartas namely Kumar Kasyab and Mahendra Kumar Kasyab were partners of the firm Nu Built Furniture Co. in their character as Kartas of the joint Mitakshara Hindu families. In a joint Mitakshara Hindu family until and unless there was a partition no coparcener could specify that he has a particular share in the joint family properties. The share in a Hindu Mitaskhara joint family is liable to be decreased by births and increased by deaths. No co-parcener has any defined share as such in the joint family properties. Therefore, there could be no attachment of a share of a co-parcener in the joint Hindu Mitaskhara family property. It was urged that the difficulty was further aggravated by the fact that the property of thee joint Mitaskhara Hindu family in the instant case was the property of the firm. The same or any part thereof did not belong to the said two Kartas or to any of the partners of the firm. Although a partner has a definite share in the partnership assets but he has no definite share in a particular fund or asset belonging to the firm. No Individual partner could lay any claim on any part of the assets of the firm. The defined share of a partner in the assets of the firm would be found out only upon taking of accounts and after all the liabilities have been paid off. The balance which would remain after payment of all the liabilities would be distributed, upon dissolution of the firm, amongst the partners in accordance with their respective shares and in that case only, the share of a partner in the assets of the firm could be determined. It was submitted by Mr. Mitra that it may be that some partner has made huge overdrawing. It was submitted by Mr. Mitra that it may be that some partner has made huge overdrawing. Therefore, in settling the accounts his overdrawing has to be adjusted and in ultimate accounting it may be found that such partner has no share at all in the net assets of the firm. Today it is not known what would be the position of Kumar Kashyab or Mahendra Kumar Kashyab as Kartas of their respective joint Mitakshara families in the net assets of the firm. It is only after the accounts are taken, all liabities are paid, over drawings are adjusted and the firm is dissolved, that the shares of the joint Mitakshara families of which they are Kartas would be determined Thus firstly, the share of a partner in a partnership firm could not ordinarily be attached and particularly so, if the partners happened to represent a joint Hindu Mitakshara family, the real partner being such family. 7. Mr. Mitra in support of his contention relied on a decision of the Supreme Court in Addanki Naravananppa & anr. v. Bhaskara Krishnappa reported in AIR 1966 SC 1390. In this Case the Supreme Court observed that since a firm has no legal existence the partnership property vests in all the partners and in that sense every partner has an interest in such property but during the subsistence of the partnership no partner can deal with any portion of such property as his own nor can he assign his interest in a specified item of the partnership property to anyone. His right is to obtain such profits, if any, which has fallen to his share from time to time and upon dissolution of the firm to a shale in the assets of the firm which remains after satisfying the liabilities Mr. His right is to obtain such profits, if any, which has fallen to his share from time to time and upon dissolution of the firm to a shale in the assets of the firm which remains after satisfying the liabilities Mr. Mitra also referred to the provisions of Order 21, rule 49 of the Code of Civil Procedure which deals with the attachment of partnership property Under sub rule (1) of the said rule property belonging to a partnership can be attached or sold in execution of decree only after such decree was passed against the firm or against the partners of the firm as such i.e., partners of the firms sued as partners, Sub.-rule (2) of the said rule provides for charging order and appointment of receiver or even sale of the interest of a partner on the application of a decree holder where the decree was obtained against a partner. Mr. Mitra submitted that sub-rule (2) would also be read and understood to mean that such a decree was obtained against a partner sued as a partner. Mr, Majumdar however contended otherwise. It was also contended by Mr. Mitra that the tabular statement fled by the Bank was defective and there could not be any adjustment of the decretal dues of the Bank against the decretal dues of the firm Nu Built Furniture Co. because, as already submitted, the decree could not be executed against the two Kartas in respect of the partnership assets as they were holding the partnership assets as Kartas of the joint Hindu Mitakshara families. Mr. Mitra also submitted that this is not a case where equitable execution was possible, Mr Mitra is right in his such contention. 8. With regard to the application of Nu Built Furniture Co.. the firm, it was urged by Mr. Majumdar that this being an application for execution the same should have been made by way of a tabular statement but this has been made simply by way of a petition. The order is sought against the State Bank of India, Jivandeep, 1, Middleton Street, Calcutta as Garnishee. The State Bank of India is not the garnishee in respect of the said amount inasmuch as the amount was deposited with the State Bank of India by Sanderson & Morgans under orders of this court. The order is sought against the State Bank of India, Jivandeep, 1, Middleton Street, Calcutta as Garnishee. The State Bank of India is not the garnishee in respect of the said amount inasmuch as the amount was deposited with the State Bank of India by Sanderson & Morgans under orders of this court. The State Bank of India has no claim or lien or any interest in the said money nor it is holding the said money for or on account of judgment-debtor, which is also the State Bank of India, in the suit or proceeding by Nu Built Furniture Co., the firm The said money was made over by the Bank as the defendant in the firm's suit under orders of court to Sandersons & Morgans, Advocates for the defendant and the court directed Messers. Sanderson & Morgans to hold the same without any claim or lien and subject to further orders of court and to keep the same invested in a nationalised bank in a fixed deposit The order could be prayed for, Mr. Majumder urged, only in execution of the decree Mr. Hirak Mitra on the other hand contended that the money is lying in court in the hands of officers of court i.e., Messrs. Sandersons & Morgans, who hold the money subject to further orders of court and, therefore, the court can always direct Messrs, Sanderson & Morgans to make over the money. This is not an application for execution. 9. It may now be considered whether Order 21, Rule 49, sub-rule (2) would be applicable to a case where the decree was obtained against a partner in a partnership firm in his individual capacity but not as a partner of the firm In Kuver Bank Ltd (In Liquidation) v. State of West Bengal reported in AIR 1960 Calcutta 81, this court considered another decision of this court in Kurseong Hydro Electric Supply Co. v. Luxmi Narayan Sukhani & Anr. v. Luxmi Narayan Sukhani & Anr. (AIR 1941 Calcutta 364) and observed that in view of the provisions of Order 21, Rule 49(1) of the Code of Civil Procedure debt due to a partnership firm cannot be attached under the provisions of Order 21, rule 46 of the Code in execution of a decree obtained not against the firm or the partners as such but against a person in his individual capacity even though such person happens to be a partner of the firm. The provisions of Order 21, Rule 49(2) of the Code apply to such a case and the interest of such person in the partnership property may be proceeded against in execution with or without the appointment of a receiver In my opinion the learned Judge correctly laid down that the provisions of Order 21, rule 49(1) relate only to those cases where the decree was passed against the firm or against the partners of the firm such as partners. Sub rule (2) however applies to those cases where the decree has been obtained against a partner in his individual capacity where he has not been sued as a partner of the firm. The wordings of sub. rules (1) and (2) of Order 21 rule 49 clearly supports the view I have taken Sub-rule (1) deals with a decree passed against the firm or against a partner in the firm as such. But sub-rule (2) deals with a decree passed against a partner. It does not say us in sub-rule (1) decree passed against a partner in the firm as such. Thus if a decree is passed against a partner of a firm as such partner, the decree would be executable under sub-rule (1), while a decree passed against a partner of a firm not as such partner but in his individual capacity, the same would be executable under sub-rule (2) of Order 21, rule 49. 10. Thus if a decree is passed against a partner of a firm as such partner, the decree would be executable under sub-rule (1), while a decree passed against a partner of a firm not as such partner but in his individual capacity, the same would be executable under sub-rule (2) of Order 21, rule 49. 10. I do nut think that the interest of a partner in the partnership firm could not be touched by the Court in execution of a decree, even if the decree was passed against the partner not in his capacity as a partner but in his individual capacity As already observed, there cannot be adjustment to the two decrees and therefore prayer (a) in column 10 of the tabular statement in the execution application filed by the State Bank of India cannot be allowed. There is good authority for the proposition as observed in Mt. Muneswari case (supra) by the Division Bench of this Court that an attachment of the undivided share of a member of a Mitakshara joint family during his life time operates as a division of interest and causes a severance of status. If the interest which passes to the purchaser is the share which the judgment debtor would get if a partition was made at the time of the sale, it follows that the interest would neither be diminished by an increase, nor increased by a diminution in the number of co-sharers. In the event of attachment of a larger share than that which belonged to the judgment debtor the attachment would be effective only to the extent of the interest of the judgment debtor. Thus, Kumar Kashyap and Mahendra Kumar Kashyap, judgment debtors nos. 2 and 3 in the execution application or the Bank being kartas of the Hindu Mitakshara joint family and holding 50% and 40% shares respectively in the firm would have an individual interest in the firm as a coparcener. Inasmuch as the decree was not obtained against the said two Kashyaps in their capacity as partners of the firm the decree could be executed under sub-rule (2) of Order 21 rule 49 by making a charging order against the interest of the said two Kashyaps in the partnership property and profits with the payment of the amount due under the decree at the first instance. Subsequently, however, the Court may appoint a Receiver and direct sale. Subsequently, however, the Court may appoint a Receiver and direct sale. The Court may also do so by the same order while charging such interest. I do not find that there would be any difficulty in making an order in terms of prayer (b) of column 10 of the tabular statement with a little variation or modification as may be necessary in the peculiar facts and circumstances of this case. There will therefore be an order charging the interest of Kumar Kashyap also known as Bhupendra Kumar Kashyap and Mahendra Kumar Kashyap as members of the Joint Hindu Mitakshara family and as partners in the partnership firm of Nu Built Furniture Co. in the property and profits of the said firm with payment of the amount due under the decree and Mr. Pradip Dutta, Barrister-at Law is appointed Receiver of the share of Kumar Kashyap also known as Bhupendra Kumar Kashyap and of Mahendra Kumar Kashyap in the profits of the partnership firm whether already declared or accrued and of any sums which may be paid or given to the said Kumar Kashyap and Mahendra Kumar Kashyap in respect of the said partnership firm. There will also be an order in terms of prayer (e). The initial remuneration of the Receiver is fixed at 40 G M.s to be paid by the petitioner Bank at the first instance. 11. So far as the application made by Nu Built Furniture Co., the firm, I am unable to accept the contention of Mr. Mitra that the amount, payment whereof is asked for in the said application is lying in court in the hands of the officers of the Court The prayer is not directing Sandersons and Morgans to pay the said amount but the prayer is on the State Bank of India, Jivan Deep on Middleton Street, Calcutta, as garnishee to pay to the Sheriff of Calcutta the said amount although the fixed deposit amount is in the name of Messrs Sander sons & Morgans the advocates for the Bank Under orders of Court the State Bank of India was directed to deposit the said amount with Messrs. Sandersons & Morgans, their own advocates who were to hold the same free from lien subject to further orders of the Court and keep the same invested in fixed deposit in a nationalised Bank until further orders. Sandersons & Morgans, their own advocates who were to hold the same free from lien subject to further orders of the Court and keep the same invested in fixed deposit in a nationalised Bank until further orders. Thus, it would be Sandersons and Morgans who might possibly be said to be garnishee but that also would not be free from doubts or difficulties inasmuch as Messrs. Sandersons and Morgans are not holding the money subject to further orders of Court. They are not holding the money as such belonging to the judgment- debtor the State Bank of India so that a garnishee order may be made against them. The State Bank of India with whom the said money is lying in fixed deposit cannot be said to be garnishee nor the said money could be said to be lying in Court. The order against a garnishee is obtained in execution of the decree and therefore the application of the Nu Built Furniture Co. is an execution application and Rule 10 of Chapter XVII of the Original Side Rules applies to the same. Such application bas therefore to be made by way of a tabular statement and should be accompanied by a certified copy of the decree. The application has not been made in such form and is not accompanied by a certified copy of the decree, Under Chapter XVIII Rule 2 if the garnishee does not forthwith pay and deliver to the Sheriff the amount due from him or the property deliverable by him to the judgment debtor and so much as may be sufficient to satisfy the decree and the costs of execution, the Judge may order the garnishee to pay or deliver in terms of such notice and on such order execution may be issued as though such order were a decree against the garnishee. 12. The decree. holder has to obtain from the Registrar or Master as the case may be, under rule I of Chapter 18 of the Original Side Rules an order issuing notice to the garnishee calling upon him to deliver to the Sheriff the debt due from him or otherwise to appear before the Judge in Chamber and show cause why he should not make such payment or deliver such property. When that has been done and if the garnishee does not pay, rule 2 comes into play. When that has been done and if the garnishee does not pay, rule 2 comes into play. Even if this was an application for payment by garnishee, as prayed for by the firm, the procedure with regard to the garnishee proceedings has not been followed. Accordingly no order can be made on this application. In the facts and circumstances of the Case there will be no order as to costs. Bank's application allowed. No order made on Nu Built's application.