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PETITIONER: GAJENDRA NARAIN SINGH

       Vs.

RESPONDENT: JOHRI MAL PRAHLAD RAI

DATE OF JUDGMENT: 13/11/1962

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1964 AIR  581            1963 SCR  Supl. (2) 303

ACT: Execution-Partnership  firm-Summons on  individual  partner- Maintainability-Code  of  Civil  Procedure 1908  (Act  V  of 1908), Or. 30, rr. 6, 7; Or. 21, r. 50.

HEADNOTE: The  respondent-plaintiff  sued  the firm  of  M/s.   Tirhut Umbrella  Works in the Bombay City Civil Court for a  decree for Rs. 20,320/.  The summons in the suit was served on  the appellant as a partner of the firm.  The appellant  appeared in the Civil Court through ;in advocate without protest  and obtained  an  adjournment for filing  a  written  statement. Later  the advocate sought leave to withdraw the  appearance on  the ground that the appellant was not a partner  of  the firm  but  the application was rejected by the  court  which proceeded to try the suit ex-parte and decreed it as  prayed for.   The  decree  was transferred  for  execution  to  the District  Court, Patna, where the respondent  first  applied for  leave to execute the decree against the  appellant  but later  wanted to proceed with the execution  without  leave. The District Court held that the appellant was not a partner and  that  as  the City Civil Court had  not  decided,  that question,  it was open to the executing court to decide  it. On  appeal, the High Court reversed the order  and  directed the execution to proceed against the appellant. Held,  that  on the evidence on record and in  view  of  the appellant  not having produced the original  summons  served upon him it must be held proved that the appellant had  been served as a partner of the firm and had appeared under rr, 6 and  7  of  Or.  30 of the Code  of  Civil  Procedure.   The District  Court by refusing leave to withdraw on the  ground that  the appellant was not a partner the City  Civil  Court had  impliedly decided that the appellant was a partner  and there not having been any appeal against that decision,  the order was final and the decree could be executed against the appellant under Or. 21, r. 50 Civil Procedure Code.

JUDGMENT:

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 268 of 1960. 31 Appeal from the judgment and order dated September 5,  1958, of the Patna High Court in Misc.  Appeal No. 252/55. A.   V. Viswanatha Sastri, Yogeshwar Prasad and U.     P. Singh, for the appellant. G.   S.  Pathak,  Rameshwar Nath and S. N. Andley,  for  the respondents. 1962.  November 13.  The judgment of the Court was delivered by SHAH,  J.-M/s. johri Mal Prahald Rai-hereing after  referred to  as  ’the plaintiffs’-commenced an  action  against  M/s. Tirhut  Umbrella  Works  (a firm  carrying  on  business  at Laheriasarai in the State of Bihar) in the City Civil Court, Bombay,  for  a  decree  for Rs.  20,320/-  with  costs  and interest.  Summons of the suit was served upon one  Gajendra Narain Singh-hereinafter referred to as ’Singh’-at Road 8, R Block  at Patna (Bihar) as a partner of the defendant  firm. Mr. D. B. Tilak an advocate who was engaged by Singh,  filed on April 22, 1953 in the Court a Vakalatmama signed by Singh authorising  him  to act, appear and plead in the  suit.   A chamber  summons for directions for trial of the suit  as  a commercial  cause  was  thereafter  served  on  Singh.    On September 9, 1953 Mr. Tilak a, advocate for Singh  addressed a letter to the Attorneys of the plaintiffs requesting  them to  consent to an "adjournment of the x x x suit" to  enable Singh  "’to file his written statement." By consent  of  the advocates the chamber summons for directions stood adjourned by  order  of the Court for a fortnight.  When  the  chamber summons for directions was taken up for hearing on September 24, 1953 Mr. Tilak informed the Court that his client  Singh claimed that he was not a partner of the defendant firm, and orally  prayed  for an order permitting  withdrawal  of  the appearance filed in Court.  The Court declined to accede  to the  oral request and directed that appropriate  proceedings to withdraw the 32 appearance may, if so advised, be taken by Singh.  The Court directed  that  the  suit  be transferred  to  the  list  of commercial  causes and gave directions for the  progress  of the suit.  When the suit was taken up for hearing before the City  Civil  Court  on November 27,  1953  Mr.  Tilak  again appeared  and submitted that his client on whom summons  was served in the suit, was not a partner of the defendant  firm and  prayed  that he be allowed to withdraw  the  appearance which  was  filed without protest.  The Court  rejected  the application  for leave to withdraw the appearance  and  also rejected the application of Mr. Tilak for an adjournment  of the suit.  Mr. Tilak then withdrew from the suit with  leave of  the Court, and the suit was heard ex parte.   The  Court recorded  the evidence of a witness for the  plaintiffs  and admitted certain correspondence tendered by the  plaintiffs, and decreed the suit as prayed. The decree was forwarded by the-Registrar of the City  Civil Court,  Bombay  to the Court of the District  Judge,  Patna, with a certificate of non-satisfaction.  The plaintiffs then applied for leave to execute the decree against Singh  under O.  21,  rule 50(2) of the Code of Civil  Procedure.   Singh contended  that he was not a partner of the  defendant  firm and  that  he was not liable to satisfy the  debts  of  that firm; that he was not ’served with summons in the suit; that he  had appeared in the suit in which the decree was  passed not  as a partner, but in his individual capacity; and  that he  had informed the Court that he was not a partner of  the defendant  firm.  The plaintiffs then applied for  execution

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of  the decree claiming that no order of the Court  granting leave  to  execute the decree was necessary.   The  District judge, Patna, by his order dated May 12, 1955 held that  the execution  could not be directed against Singh relying  upon sub-clauses (b) or (c) of rule 50, O. 2 1, for the  question whether  he  was a partner of the defendant  firm  was  left undecided by 33 the  City Civil Court.  The learned District  judge  further held  on  the evidence that Singh was not a partner  of  the defendant firm. In appeal against the order of the District.Judge  rejecting the  application for execution against singh the High  Court at  Patna had that on the facts proved the  plaintiffs  were entitled as of right to execute the decree under O. 21  rule 50(1)(b) against Singh.  The High Court accordingly reversed the  order  passed  by  the  District  judge  and   directed execution to proceed against Singh.  With certificate  under Art.  133(1)(a) granted by the High Court, this  appeal  has been preferred by Singh. Order  30  of  the Code of Civil Procedure  deals  with  the manner in which suits may be filed by or against firms.  Two or more persons carrying on business in India may be sued in the name of the firm of which they were partners at the time of  the  accrual of the cause of action.  Where a  suit  has been  filed against the firm summons may be served   in  the manner  prescribed by rule 3. That rule, in so far As it  is material, provides-               "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  the  principal place  at  which  the               partnership  business  is  carried  on  within               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  such  service              shall be deemed good service upon the firm  so               sued,  whether all or any of the partners  are               within or without India               Provided        x    x        x". 34 The  plaintiffs  had  sued  the  partners  of  M/s.   Tirbut Umbrella Works in the firm name, and the summons was  served on  Singh at Road 8, R Block, Patna.  The  original  summons would normally be with Singh but he did not care to ’produce it  before the District judge, Patna.  The High Court  on  a review  of the circumstances arrived at the conclusion  that Singh  was served with summons of the suit as a  partner  of the  defendant firm.  That conclusion is amply supported  by the evidence, and the presumption which arises under rule  5 of O. 30 which provides               "Where  a summons is issued to a firm  and  is               served in the manner provided by rule 3, every               person  upon  whom  it  is  served  shall   be               informed  by  notice in writing given  at  the               time of such service, whether he is served  as               a partner or as a person having the control or               management of the partnership business, or  in               both  characters,  and,  in  default  of  such               notice,  the person served shall be deemed  to               be served as a partner." It   is  not  possible  to  say  whether  the  summons   was accompanied by the notice contemplated by rule 5, but it  is

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clear  by the express words of the rule that in  default  of such  notice the person served shall be deemed to be  served as a partner.  Singh has in his affidavit sworn in the suit, and  also in his testimony at the hearing in  the  execution proceeding admitted that he was served with a summons in the suit,  and  Mr. Vishwanath Sastri appearing  for  Singh  has fairly not challenged the finding- that Singh must be deemed to have been served as a partner of the defendant firm.               Rule 8 of O. 30 provides :-               "Any  person served with summons as a  partner               under rule 3 may appear under protest, denying               that  he  is a partner,  but  such  appearance               shall   not   preclude  the   plaintiff   from               otherwise                35               serving  a summons on the firm  and  obtaining               decree   against  the  firm  in   default   of               appearance where no partner has appeared." The  rule enables the person served as a partner  to  appear under  protest and to deny that he is a partner of the  firm which is sued.  Appearance under protest by the person  sued renders the service of summons as regards the defendant firm in  effective   The  plaintiff may obtain  a  fresh  summons against the firm and serve it in the manner prescribed by O. 30  rule  3 against another person who is alleged  to  be  a partner  by the plaintiff or against the person who has  the control or management of the partnership business.  A decree against the defendant firm so obtained may with leave  under O.  21  rule 50 (2) be executed against the  firm  and  also against  the  person  who had been initially,  served  as  a partner and who had appeared tinder protest denying that  he was  a partner.  The plaintiff however, is not’  obliged  to obtain  a  fresh  summons:  he  may  request  the  Court  to adjudicate  upon  the plea of denial raised  by  the  person served  and  appearing under protest.  The Court  will  then proceed to determine the issue raised by that plea.  If  the Court  finds  on evidence that the person served was  not  a partner  at  the  material time, the  suit  cannot  proceed, unless summons is served afresh under rule 3 : if. the Court holds that he was a partner service on him will be  regarded as  good  service  on the firm and  the  suit  will  proceed against the firm. In  the  present case Singh did not enter  appearance  under protest.   He filed an appearance in his individual name  in the  suit,  and obtained an adjournment from  the  Court  to enable him to file his written statement.  The appearance so filed  must be deemed to be on behalf of the firm.   At  the hearing  of the summons for directions he contended that  he was  not  a partner of the defendant firm  and  applied  for leave to withdraw his appearance which was filed without 36 protest.  Unless the Court permitted Singh to with draw  the appearance   initially  filed,  it  continued    to   be   an appearance under rule 6 of O. XXX on behalf of the firm.  We are  not  concerned  in  this case  to  decide  whether  the application of Singh for leave to with- draw his  appearance was properly rejected.That question could only be raised  in adopted by Singh in the proper Court  challenging   decision of the duty Civil Court and not    for  execution   of   the decree.  Order  21 rule5(     the Code  of  Civil  Procedure deals  with execution of decrees against firms.  By cl.  (1) it is provided:               "   Where a decree has been passed  against  a               firm,               execution may be granted-

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             (a)   against any property of the partnership               (b)   against  any person who has appeared  in               his own name under rule 6 of ’rule 7 of  Order               XXX or who has admitted on the pleadings  that               he  is,  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.               Provided         x       x      x    x     x."               Clause (2) provides               "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), clauses (b) and  (c)  as               being  a partner in the firm, he may apply  to               the Court r which passed the decree or  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  per-son  be  tried   and               determined in any manner in                                     37               which  any  issue in a suit may be  tried  and               determined."               By cl. (3) it is provided               "Where  the liability of any person  has  been               tried  and determined under sub-rule (2),  the               order  made thereon shall have the same  force               and  be subject to the same conditions  as  to               appeal or otherwise as if it were a decree." Manifestly  relying upon sub-clauses (b) and (c) of  subrule (1) a plaintiff who has obtained a decree against a firm may execute  it  against any person who  has  been  individually served  with  the  summons as a partner and  has  failed  to appear  and also against any person who has appeared in  his own name under rule 6 or rule 7 of Order ’XXX.  Singh  being a  person who had after being served as a  partner  appeared under rule 6, the decree of the City Civil Court, Bombay was executable against him. The plaintiffs did undoubtedly make an application for leave to  execute the decree against Singh on the footing that  he was a person other than a person referred to in cls. (b) and (c) of sub-rule (1) of r. 50 O. 21, but that proceeding  was plainly the result of an incorrect appreciation of the  true position in law.  On that account his right under O. 21 rule 50  (1) (b) was not lost.  The plaintiffs were  entitled  to abandon the application for leave under sub-rule     (2) and to execute the decree under sub-rule (1). The record of the City Civil Court, Bombay, tendered  before the  District judge clearly establishes that Singh  who  was served  as  a  partner  of  the  defendant  firm  filed   an appearance  under  rule  6  O.  30  of  the  Code  of  Civil Procedure, and thereafter his application for withdrawal  of appearance was rejected and the suit was decreed against the firm.  This decree 38 against  the  firm was by virtue of sub-rule (1)cl.  (b)  of rule 50 O. 21, liable to be executed against Singh. The  High  Court  was therefore, in our  judgment  right  in directing  execution of the decree of the City Civil  Court, Bombay,  against Singh.  The appeal fails and  is  dismissed with costs. Appeal dismissed.

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