Satchidanand vs Prayag Sah-Saheb Ram

Das, J.—This appeal is directed against the order of the Subordinate Judge of Chapra, dated 2nd July 1928 and the short question which we have to determine in this appeal is whether the respondent, in the events which have happend, are entitled to execute the decree as against Satchidanand. It appears that on 28th July 1925 the respondent instituted a suit being suit No. 2043 of 1925 in Calcutta High Court in the exercise of its ordinary original jurisdiction against Himat Prasad Satchidanand, described in the cause title as:

a Hindu joint family partnership firm carrying on business as merchants at Sahebgunj in Chapra.

On 4th September 1926 the plaintiff firm obtained a consent decree as against the defendant firm. The decree was a money decree for Rs. 11,000. The plaintiff company then applied for transfer of the decree to Chapra for execution as against the properties alleged to belong to the defendant firm.

On 25th July 1927, the decree-holders presented an application for execution as against Himmat Prasad and Satchidanand. They described Satchidanand in the case title as the son of Himmat Prasad. They stated all the material facts and alleged that the properties against which they were proposing to proceed were the properties of the judgment-debtors; and they invited the Court to execute the decree by the attachment and sale of certain properties specified is the petition as belonging to the judgment-debtors. There was no contest by Himmat but on 22nd December 1927, Satchidanand put in a petition in which he asserted that:

there never was, nor is any firm known as Himmat Prasad Satehidanand in which your petitioner was a pirtner.

He alleged that "all the properties which we have partitioned are ancestral properties;" and he claimed that no summons was served on him in suit No. 2143 of 1925 and he insisted that the execution petition was not maintainable as against him. The learned Subordinate Judge has rejected the plea put forward on behalf of Satchidanand and has allowed execution to proceed; hence this appeal to this Court by Sat-chidanand.

Prior to the passing of the present Code, there was no procedure known to law which governed suits by or against partnership firms. In this matter, Order 30 of the Code of 1908 has approximated the procedure to that which is well known in England. But it is well settled that Order 30 has effected no change in the rights of the parties and that it has merely effected a change in procedure. Now Order 30, Rule 1 allows:

any two or more persons claiming or being liable as partners and carrying n business in British India.

to

sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action.

This was undoubtedly done in this case, so that the suit which was instituted on behalf of the plaintiff firm was in order. Rule 3 provides that:

Where persons are sued as partners in the name of their firm, the summons shall-be served either (A) upon any one or more of the partners, or (B) at tins principal place at which the partnership business is carried on within British India upon any person having, at the time of service, the control or management of the partnership business there, as the Court may direct; and sue!'', service shall hs deemed good service upon the firm so sued, whether all or any of the partner are within or without British India.

and then follows a proviso which is not material, in the view which I take of this case. Now in this case summons was undoubtedly served upon Himmat so that the Court was properly seised of the case and was entitled to proceed with it. It did proceed with it and ultimately passed a consent decree, as I have already said, on 4th September 1926. I have no doubt whatever that the decree was properly obtained against the defendant firm.

But now arises the question whether the plaintiff firm in entitled to proceed in execution as against Satchidanand. Now 1 may mention that Satchidanand did not appear in hi:.; own name under Rule 6, Order 30; and I may further mention that no question arises of his appearance under Rule 7. It is further admitted that Safcehidanand lias not been individually served as A partner with a summons in the case. Now bearing these facts in mind, I have no dcubt whatever that the plaintiff firm is not entitled to proceed in execution as against Satchidanand. The procedure in regard to this matter is governed by Order 21, Rule 50. That rule provides as follows:

Where a decree has been passed against a. firm, execution may be granted:

(a) against any property of the partnership;

(b) against any person who has appeared in his own name under Rule 6 or Rule 7, Order 3O or who has admitted on the pleadings that his or who has been adjudged to be, a partner;

(c) against any person who has been individually served as a partner with a summons and has failed to appear.

Now as I have stated execution is not sought against the property of the partnership. It is sought against properties in the hands of two judgment debtors so that no question under Sub-rule (a) arises. Sub-rule (b) has no application because as I have stated Satchidanand did not appear in his own name-under Rule 6 and did not admit in the pleadings that he was a partner, and it has not been adjudged that he is a. partner, and Sub-rule (c) does not apply because as I have already mentioned Satchidanand has not been individually served as a partner with a summons so that no question arises that he failed to appear. Then there is Sub-rule (2) which it is necessary for me to consider. That rule provides as follows:

Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in Sub-rule (1), Clause (b) and (c), as being a partner in the firm,

and I may mention that the decree-holder is claiming to be entitled to proceed against Satchidanand who is obviously a person other than a person referred to in Sub-rule (1), Clauses (b) and (c):

he may apply to the Court which passed the-decree for leave, and where the liability is not-disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such persons be tried and determined in any manner in which any issue-in a suit may ba tried and determined.

It follows that Clauses (b) and (c), Sub-rule 1, Rule 50 not applying, the decree-holder, if it were his case that Satchidanand is a partner in the firm, should have applied to the Calcutta High Court for the appropriate order under Rule 50, Sub-rule 2. That application has not been made and I am clearly of opinion that the decree-holder is not entitled to proceed as against Satchidanand. Nevertheless the decree-holder has got a proper decree as against Himmat and if it be his case that properties are the joint properties of Himmat and ''Safcchidanand, he is undoubtedly entitled to proceed as against these properties in the hands of Himmat; but he is not entitled to proceed against Safcchidanand in these proceedings ; for it is obvious that Satchidanand must be allowed an opportunity to agitate the question whether the properties are joint family properties and whether the decree-holder is entitled to proceed against these properties at all. It is quite true that this opportunity cannot be given to Safcchidanand in these proceedings and, therefore, as I have already said, the decree-holder is entitled to proceed against the properties in the hands of Himmat provided it be his case that these properties are the joint family properties of: Himmafc and Satchidanand, but the decision will not prejudice the interest of Satchidanand who no doubt will be entitled to raise ifche whole question in a suit of his own.

I must allow the appeal, set aside the order of the learned Subordinate Judge and dismiss the execution case as against Satchidanand. The execution will of course proceed as against Himmat. The respondent firm will have liberty to amend the petition and proceed in the usual, way as against Himmat and the properties belonging to the joint family in the hands of Himmat. The appellant is entitled to the costs of his appeal.

James, J.

I agree.