Chaturbhuj vs Nemichand

Samvatsar, J.—This appeal is filed by the judgment-debtor Chaturbhuj and the facts giving rise to it are as follows: --

Two persons Jugraj s/o Devichand and Kesrimal s/o Harakchand filed a suit against the present appellant Chaturbhuj, in the court of the Civil Judge Jodhpur and on 13-5-1924 obtained a decree against him for a sum of Rs. 5,025 and costs of the suit. The decree-holders made several attempts to realise the fruit of that decree, but their efforts met with little success.

In the meanwhile both the original decree-holders Jugraj and Kesrimal died and their legal representatives, the Respondents in this appeal, appeared on the scene. They in their tura continued the efforts to recover the decretal amount from the appellant but have uptill now not achieved any substantial result.

In 1951 the Respondents applied to the Jodhpur Court to transfer the decree for execution, to the Civil Judge, Bhilsa. On 10-2-1951 that prayer was granted by the Jodhpur Court and the decree was transferred to the Civil Judge, First Class. Bhilsa.

When the judgment-debtor appeared before the Civil Judge Bhilsa, he raised several objections to the execution of the decree it is unnecessary to set out these objections and it is sufficient to state that these objections were upheld by the learned Civil Judge and the execution application was dismissed. The decree-holders filed an appeal which was allowed by the District Judge, Guna and the case was remanded to the executing Court 10 execute the decree. The present second appeal is filed by the judgment-debtor against this order of remand.

During the pendency of the appeal the Respondent Nemichand died. The appellant took no steps to implead his legal representatives.

Mr. Bhagwandas Gupta learned Counsel for the Respondents raised a preliminary objection viz. that the appeal has abated by reason of the failure of the appellant to bring on record the names of the legal representatives of the deceased Respondent Nemichand and that it could not be considered on merits.

The appellant''s main contention in this behalf is that the decree-holders were partners of the firm Jugraj Kesrimal and had obtained the decree in the firm-name. Reliance was placed on his behalf on the provisions of Order 30 Rule 4 Code of CPC to contend that it was not necessary to bring on record the legal representatives of the deceased partner in such a case and the appeal did not abate because Nimichand''s legal representatives were not impleaded as Respondents.

Now it is well settled that a firm is not a Juristic person but it is a compendious expression to describe the members constituting it. Order 30 of the CPC is an enabling provision and permits the partners to sue and be sued in the firm name. But as the individuality of the partners is not merged in that of the firm, they can still sue and be sued in their individual names. If, therefore, the partners do not choose to file a suit in the firm name, there Is nothing in the Code of CPC and particularly la Order 30 thereof which would compel them to do so. The provisions of order 30 Rule-4 can be invoked only if the suit is filed in the firm name but not otherwise. (See 1957 J.L.J. 300,) Pyarelal v. Modi Sikharchand; 135 IC 245, Shri Chand v. Bansidhar AIR 192 7 Lah 115 Savalaram Girdharilal Marwadi Vs. Himatlal Pratapmal and Co., Savalaram Girdhari lal v. Himmatlal Partapmal & Co.

The question is whether the proceedings giving rise to this appeal were commenced in the firm name, Jugraj Kesrimal.

The decree passed by the Civil Judge Jodhpur is in favour of two individuals Jugraj s/o Devichand and Kesrimal s/o Harakchand of Tiwri. There is no reference to the firm Jugraj Kesrimal and the name Jugraj Kesrimal does not appear in the decree.

The certificate of transfer is dated 14-2-1951. That certificate also shows the decree-holders to be Parasmal legal representative of the deceased Jugraj and Nemichand and Javarimal legal representatives of deceased Kesrimal.

These documents ex-facie show that the suit was filed by the Plaintiffs in their own names and the execution applications were filed in the personal names of their legal representatives i.e. the present Respondents.

Mr. Patankar relied upon the application and the affidavit filed by the decree holders Mukhtyar Bhikulal on 12-5-1951. The Mukhtyarnama produced by him and the memorandum of appeal filed by the Respondent in the Court of the District Judge, Guna. In all these documents the decree-holders are described as Parasmal and Nemichand proprietors of the firm Jugraj Kesrimal.

The fact that the Respondents decree-holders have described themselves as owners of the firm Jugraj Kesrimal in their appeal and another application is, however, not sufficient to convert proceedings commenced by individuals in their own names into proceeding in the firm name. The contention of the appellant based on Order 30, Rule 4 Code of CPC must, therefore, fail.

Mr. Patankar placed considerable reliance on the decision of the Bombay High Court in Savalaram Girdharilal Marwadi Vs. Himatlal Pratapmal and Co., but that case does not help him at all. That was a case where the Plaintiff had brought a suit for accounts and dissolution against a registered firm, Defendant No. 1 and its partners Defendants No. 2, 3, 4 and 5 and obtained a preliminary decree for dissolution. He went in appeal against certain orders passed in the preliminary decree. During the pendency of the appeal, one of the Respondents died and his heirs were not brought on record within the statutory period. The plain, tiff, therefore, applied to set aside the abatement. The Court however held that the whole appeal had abated and refused the prayer. The Plaintiff there upon filed a second appeal in the High Court and contended that the suit was against a firm and did not abate at all by reason of Order 30, Rule 4 Code of CPC The High Court held that the suit was against a firm and that the Plaintiff''s action in making the partners party into the suit after having made the firm a principal Defendant was neither here nor there. It, therefore held; that the provisions of Order 30, Rule 4 Code of CPC applied and the appeal did not abate, at all.

In the instant case the firm is not at all impleaded as a party. The proceedings are in the name of the individuals who have described themselves as owners of the firm Jugraj Kesrimal. The Bombay case has therefore, no application to this case.

The next question to be considered is whether the appeal has abated wholly.

The decree in the present case is passed jointly in favour of two persons and the interest of each one of them is not specified. Both the decree-holders initiated the execution proceedings which were thrown out by the Civil Judge as not maintainable, The appellate Court reversed the order of the Civil Judge and directed the execution to proceed. The order of the, District judge is thus jointly in favour of both and any interference with it on appeal is bound to affect the interest of both. The interest of the Respondent Parasmal will be safeguarded by him but there is none to represent the interest of Nemichand. The appeal cannot, therefore, proceed in the absence of hit legal representatives.

On this view of the matter it must be held that the appeal has wholly abated and cannot be proceeded with.

It is therefore dismissed, No order as to costs.

Khan, J.

I agree.