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PETITIONER: GAMBHIR MAL PANDIYA

       Vs.

RESPONDENT: J.   K. JOTE MILLS CO., LTD., KANPUR AND ANOTHER

DATE OF JUDGMENT: 17/04/1962

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, S.K. SHAH, J.C.

CITATION:  1963 AIR  243            1963 SCR  (2) 190  CITATOR INFO :  R          1965 SC1718  (8)

ACT: Partnership--Decree against firm--Execution against  partner not  summoned  in suit--Liability of  such  partner--Whether partner   can  raise  issues  between  himself   and   other partners--Code of Civil Procedure, 1908 (Act 5 of 1908),  O. 21. r. 50(2).

HEADNOTE: A contract entered into between the respondent company and a firm consisting of two partners, T and G, was signed by T. A dispute relating to the contract wag referred to arbitration in pursuance of the terms of the contract providing for such arbitration,  and  an  award  was given  in  favour  of  the company.  The award was made into a rule of the court and  a decree  was  passed against the firm.  In execution  of  the decree  the company sought to proceed against  the  personal property  of G and made an application for the leave of  the Court under 0. 21, r. 50(2), of the Code of Civil Procedure. G pleaded that the award and the decree passed thereon  were not  binding on him on the grounds, that the  other  partner who  had signed the contract had no authority to enter  into the agreement Containing the arbitration clause or to  refer the  dispute to arbitration and that he had not been  served in the proceedings relating to the arbitration. Held,  that G was liable for the decree passed  against  the firm.   A  decree  passed against a  firm  may  be  executed against  a partner who was not summoned in the suit, but  0. 21, r. 50 (2), of the Code of Civil Procedure gives him  an opportunity  of showing cause if he disputes his  liability. In  such  a case he can prove that he was not a  partner  or that  he was not a partner at the time the cause  of  action accrued.   He can also question the decree on the ground  of collusion,  fraud or the like, but he cannot have  the  suit tried  over  again or arise issues between himself  and  his other partners. Jagat  Chandra  Battacharjee  v.  Gunny  Hajet  Ahmed,  926) I.L.R. 53 Cal. 214, In re Malabar Forests & Rubber Co.  A.I. 1932  Bom.334,Rana  Harkishandas v.Rana Gulabdas, I.  L.  R. [1956]  Bom.  193,  C. M. Shahani  v.  Havero  Trading  Co.,

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(1944)51 C. W. N. 488, Maharane Mandalsa Kumari Devi 191 v.   M. Ramnarain Private Ltd., I.L.R. [1959] Bom. 1468  and Kuppuswami  v.  Polite Pictures, I.L.R.  [1955]  Mad.  1106, approved. Bhagvan  v. Hiraji,A.I.R. 1932 Bom. 516 Ceoverji Varjang  v. Cooverbai  Nagsey,  A.I.R. 1940 Bom. 330 and In  re  Tolaram Nathmull I.L.R. [1939] 2 Cal. 312, disapproved. Munster  v. Cox, (1885) 10 App Gas-68O Davis v. Hyman  &  Co [1903] I:K.B. 854 and Weir & Co. v. Mc Vicar & Co., [1925] 2 K.B. 117, relied. on.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 19 of 60.  Appeal  from  the judgment and decree dated  September  25, 1957, of the Allahabad High Court, in Civil Revision No. 815 of 1955. M.   C. Setlvad, Attorney-Gewral for India and B. P. Maheshwari, for the appellants. S.   M. Sikri, Advocate-General for the State of Punjab  and K. P. Gupta, for respondent No. 1.  1962. April 17.  The Judgment of the Court was delivered by HIDAYATULLAH, J.-This is an appeal on a certificate  granted by  the  High  Court of Allahabad  against  an  order  dated September 25, 1957, dismissing a revision petition filed  by the present appellant. The facts of the case, are very simple.  Messrs.  J. K. Jute Mills  Co. Ltd. (the answering respondents), entered into  a contract  with a firm, Messrs.  Birdhi Chand Sumer Mal,  for the  supply of certain articles.  The ’contract was  entered into by one Seth Tikam Chand, a partner in the firm.  One of the  terms of the contract was that in a case of  a  dispute between  the parties, it would be referred to the  Merchants Chamber  of Commerce, Kanpur, for arbitration.   It  appears that a dispute arose, which was referred to the Chamber  of Commerce, 192 and  an  award in favour of the Mills was given  on  January 8,1947.  Two years later, the award was made into a rule  of the  Court,  and a decree followed in favour of  the  Mills. The  firm  of  Birdhi  Chand  Sumer  Mal  consisted  of  two partners;  the  other  partner  was  one  Mr.  Pandiya,  the predecessor-in-interest  of  Seth Gambir  Mal  Pandiya,  the appellant.   In execution of the decree passed  against  the firm,  the  Mills  wished to proceed  against  the  personal property  of Mr. Pandiya, and filed an application  for  the leave  of  the Court under 0.21, r. 50(2), of  the  Code  of Civil Procedure.  In answer to the notice which was  issued, the appellant, Seth Gambir Mal Pandiya, appeared and  raised objections.  He contended that he had not been served in the proceedings  relating to the arbitration; nor of the  making and  the  filing of the award in Court.  He  also  contended that  Seth  Tikam Chand, who had signed  the  contract  con- taining  the  arbitration  clause with  the  Mills,  had  no authority  to  enter  into an agreement  containing  such  a clause  or to refer the dispute to arbitration on behalf  of the  other  partners.  He, therefore,  maintained  that  the award was not binding on him. The  connections of the appellant were not accepted  by  the First  Civil Judge, Kanpur, who allowed the  application  of the  Mills  and  granted them leave  under  the  rule.   The appellant then filed an application for revision in the High Court  of Allahabad, which was heard by C. B.  Agarwala  and

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Beg, JJ., Agarwala, J., held that although the decree passed against  the  firm  was to be deemed  to  have  been  passed against all the individual partners thereof, it was  binding proprio  vigore  only against the partnership  property  and personally  against  those  persons, who  are  mentioned  in cls.(b) and (e) of r. 50(1), 0. 21, and that the decree  was not binding against the appellant, who had                             193 not been served in the suit and would be binding only when a summons  was served upon him to appear under sub-r. (2)  and his  liability  was  determined.  The reason  given  by  the learned  Judge was that a person who was not served  in  the suit could question his personal liability under the decree, even  though he admitted himself to be a partner,  upon  any ground  which was open to him if he had been served  in  the suit, and that such a person could raise the objection  that as  the decree was the result of an, reward which was  based upon  an agreement of reference to arbitration to  which  he was  not  a party, he was not personally  liable  under  the decree,  Beg, J., on the other hand, held that  inasmuch  as the appellant admitted that he was a partner in the firm  of Birdhi  Chand  Sumer Mal, he was not entitled to  raise  any objection  either to the contract or the reference to  arbi- tration  or the award.  The learned Judge  having  disagreed about  the interpretation to be placed on sub-r. (2)  of  r. 50, the case was laid before Mukherji, J. He agreed with the conclusion  of Beg, J., and in accordance with his  opinion, the application for revision was dismissed.  The  Divisional Bench, however, certified the case as fit for appeal to this Court, and the present appeal has been filed.               Order  21, r. 50, of the Code of Civil  Proce-               dure reads as follows;-               "50.  (1)  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 of  Order               XXX or who has admitted on the Pleadings  that               he  is  or  who has been  adjudged  to  be,  a               partner;               194               (c)   against   any   person  who   has   been               individually  served  as  a  partner  with   a               summons and has failed to appear:               Provided  that nothing in this sub-rule  shall               be  deemed  to limit or otherwise  affect  the               provisions  of  section  247  of  the   Indian               Contract Act, 1872.               (2)   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, he may               apply to the Court which passed the decree for               leave,  and  where the liability is  not  dis-               puted,  such Court may grant such  leave,  or,               where  such liability is disputed,  may  order               that the liability of such person be tried and               determined in any manner in which any issue in               a suit may be tried and determined.               (3)   Where  the liability of any  person  has               been  tried and determined under subrule  (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.

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             (4)   gave  as  against any  property  of  the               partnership, a decree against a firm shall not               realise, render liable or otherwise affect any               partner therein unless he has been served with               a summons to appear and answer." This  rule  deals  with the execution  of  decrees  obtained against, firms.  It enable the decree to be executed against the partnership assets.  It also enables that the decree may be  executed against any one who appeared in the  suit,  and admitted that he was a partner or who was lawfully  adjudged in the suit to be one.  It also enables 195 that the decree may be executed against any person  lawfully summoned in the suit as a partner but who did not choose  to appear  individually  to  defend  the  action.   Lastly,  it provides that if it is desired to execute the decree against a person as being a partner of the firm who does not  belong to  the categories already mentioned, then the leave of  the Court  must be obtained and the Court before  granting  such leave  should summon that person whose liability, unless  he admits it, should be tried as an issue.  So far, the  matter is  quite  simple.   The difficulty appears  only  when  one begins to give a meaning to the expression ’the liability of such  person"  and this raises the question:  what  kind  of defences  are open to such a person ? The learned  Attorney- General  has argued that the expression admits of  a  narrow construction,  a wide construction and a construction  which is  in between the two.  The narrow construction,  according to him, is that the only. issue to be tried is whether  that person  was  a partner or held himself out to be  one.   The wide  construction, according to him, is that the issue  may take  in all defences open to the partnership not raised  in the  suit and also all defences personal to that  person  to avoid  his  individual liability.  Under  the  middle  view, according  to him, the Court is to try an issue relating  to the  personal liability of that person.  On the other  hand, the learned Advocate-General of the Punjab, who appeared for the   respondent  Company,  contends  that  if  the   person summoned,  admitts  that he is a partner, there  is  nothing further to try, and execution can issue against him  indivi- dually without trying any other issue he may wish to  raise. This  contention as raised by the  learned  Advocate-General prevailed in the Allahabad High Court, while the  contention of the learned Attorney General was accepted by Agarwala, J. Order 21, r. 50 (2), of the Code deals with executions,  but really is a part of the provisions 196 relating  to  suits  against firms.   Those  provisions  are contained in O. 30 of the Code, and must be viewed alongside to  get  the true meaning of the words.  Order  30  and  the provisions  of r. 50 of O. 21 were taken from O. XL VII,  a, of the Rules of the Supreme Court in England.  Though  there are  slight variations in language, the provisions . of  our Code  are in pari material with the provisions of the  Rules of  the  Supreme Court, as amended in  1891.   Under  common law,.  an action against firms was not known.   All  actions had to be brought against the partners individually.   After the  Judicature  Acts,  rules were  framed  in  1883,  which enabled actions to be brought against firms in the names  of the firms. The  rules  provided forms for appearances  by  persons  who entered  appearances in answer to summons  lawfully  issued; but  the later rules which are more exhaustive, though  they do not dispense with the forms of appearance, prescribe  how the presence of the firm and of individual partners is to be

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secured  and  how  defences are to be  raised.   It  is  not necessary  to reproduce the English rules.  They are  to  be found  in the Annual Practice, Vol. 1, P. 1151 (1962).   The rules  of 1891 are almost reproduced as S 30. 30 and 0.  21, r. 50, of the Code of Civil Procedure.  Order 30 deals  with procedure  in suits against firms in the firm name,  and  0. 21,  r.  50 with the execution of decrees  obtained  against firms.   These  provisions  are in themselves  a  Code.   To understand  the  meaning of r. 50 (0. 21),  one  must  first consider the provisions of 0. 30, which contains ten  rules. The first rule enables a plaintiff to sue in the name of the firm,  two or more persons liable as partners, or  of  which they were partners when the cause of action accrued; and the plaintiff may also apply to the Court for a statement of the names and addresses of the persons who were, at the time  of the accrual of the cause of 197 action,  partners  in such firm.  The rule also  permit  the signing of the written statement and the verification by one partner only.  The second rule enables the defendant to  ask for  the disclosure of the names of partners, where  a  firm sues  as  a  plaintiff.  The third rule  then  provides  for service  of  summons upon the firm and the  partners.   Such summons may be served, as the Court may direct:- (a)  upon all or any of the partners; or (b)  upon  any  person having control or management  of  the business,  at  the principal place of business of  the  firm within India. A  service  upon  the firm is deemed  to  be  good  service, whether  all or any of the partners are with in  or  without India.  But if the firm is dissolved to the knowledge of the plaintiff, the summons must be served on every person within India  whom  it is sought to make liable.  The  fourth  rule provides for right of suit on death of partner.  We are  not concerned  with  that  eventuality.   The  fifth  rule  then provides that where the summons is issued to a firm under r. 3,  every person served shall be informed by notice  whether he is served as a partner or as a person having the  control and  management of the business or both; but in the  absence of  notice the person is deemed to be served as  a  partner. Rule 6 lays down that persons served as partners in the name of  the firm shall appear individually in their  own  names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.  Rule 7 then says that if a  notice is served upon a person having the control or management  of the partnership business, he need not appear unless he is  a partner.   Rule  8 enables a person served as a  partner  to appear  under protest denying that he is a partner, but  the appearance  does n ot preclude the plaintiff from serving  a Summons 198 on  the  firm  and obtain an ex party decree,  if  no  other partner  appears.  The remaining rules do not concern us  in this case. From  the above analysis, it is clear that a plaintiff  need sue  only  the firm, but if be wants to  bind  the  partners individually  he  must  serve  them  personally,  for  which purpose  he can get a discovery of the names of partners  of the  firm.  Persons served individually may appear and  file written  statements, but the proceedings go on  against  the firm  only.  They may, however, appear and plead  that  they are  not  partners or were not partners when  the  cause  of action  arose.  But even if no other partner appears,  there may be a decree against the firm if the firm has been served with  the summons The gist of 0. 30 thus is that the  action

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proceeds against the firm, and the defence to the action  by persons  admitting that they are partners is on be  half  of the firm.  Persons sued as partners may, however, appear and seek  to  establish that they are not partners or  were  not partners  when the cause of action arose; but if they  raise this  special plea, they cannot defend the firm.   This  was laid down in connection with the analogous provisions of the English  rule in Weir & Co. v. Mc Vicar &  Co.(1).  Partners appearing and admitting their positions as partners can only defend  the firm, because the suit continues in  the  firm’s name.   The law is thus not concerned with a  fight  between the partners inter se, and an action between the partners is not  to be tried within the action between the firm and  the plaintiff.  of course, the partners who admit that they  are partners  need Dot raise a common defence.  They  may  raise inconsistent  defences.,  but  all  such  defences  must  be directed to defend the firm and the plaintiff must  surmount all  such defences.  See Ellis v. Wadeson (2).  The  purport of the rules as well as the two English oases (1) (1925) 2 K. B. 127. (2) (1889) 1 Q B. D. 714. 199 which have correctly analysed, the rules on the subject (the English  and  the  Indian rules being  alike)  is  that  the partnership  is  sued  as  a  partnership,  and  though  the partners  may put in separate defences, those defences  must be  on behalf of the firm.  If some of the partners  do  not appear,  those  that  do, must defend the firm;  but  if  no proper  defence is raised by them, the plaintiff  cannot  be deprived  of  a  judgment.  The  judgment  and  decree  thus obtained  are  executable against  the  partnership  assets. This brings in the provisions of 0. 21, r.   50,   of    the Code. That  rule enables a decree obtained against  a  partnership firm to be executed against the property of the partnership. t, it enables the decree to be executed individually against a person who appeared in his own name under r. 6 or r. 7  of 0. 30 or who admitted on the record or was adjudged to be  a partner.   Next,  the  decree can be  executed  against  any person  who  is  served individually as a  partner  but  has failed  to  appear.   Next,  it permits  the  decree  to  be executed  with  the  leave  of  the  Court  against  persons belonging  to the category of the persons  above  mentioned, provided  that.  they are summoned and  either  admit  their liability  or  after an issue is tried, their  liability  is determined. A  large number of cases decided in India and  England  have laid down the kind of issue which may be tried under 0.  21. r.  50  (2), of the Code and the cognate provisions  of  the English  rules.  Since the English cases are first in  point of time, we shall begin with them.  It must be remembered in this  connection that the English rules prescribe forms  for recording appearance by persons summoned in actions  against firms.  These are to be found in the Annual Practice, Vol. 1 (1962), at p. 1 160 and are six in number: (1)  A. B. a partner in the firm of Brown & Co. 200               (2)   A.B.  a  partner in the firm  of  Brown,               Evans &    Co. sued as Brown & Co.               (3)   A.B.  a partner in the firm of  Brown  &               Co.  at the time the alleged cause  of  action               arose.               (4)   A.B. served as a partner but who  denies               that  he was a partner in the abovenamed  firm               at any time.

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             (5)   A.B. served as a partner in the firm but               who  denies that he was a partner at the  time               of  the  accruing  of  the  alleged  cause  of               action.                (6) A person appears subsequently and desires               to appear as a partner. These forms are appropriate to an action, but they are  also used  for  persons  summoned  under  O.  XLVIII.  a,  r.  8, corresponding to our 0. 21, r. 50(2). In Jackson v. Litchfield (1), which was decided prior to the rules of 1891 the writ was issued against a firm in the firm name.  It was held that the judgment must be entered against the firm, but it could not be entered separately against  an individual member of the firm who made default in  appearing in the action.  The decision thus was that if the action was against  the firm, the judgment should be against the  firm. In Munster v. Cox (2), the writ was against R & Co. The  ap- pearance  was  "R  trading as R and  Co."  Judgment  was  by consent.   Later,  the judgment was sought  to  be  executed against one Cox who was not summoned, and for this  purpose, application was made for striking out the words "R sued  as" from  the  appearance recorded.  This  was  disallowed.   On appeal, Selborne, L. C., dealing with the former (1) (1882) 8 Q.B.D. 474. (2) (1885) 10 App.  Cas. 680. 201 O.XLII, r. 8 (corresponding to 0. 21, r. 50(2), observed  as follows :               "If  execution  was sought against  any  other               person as being a member of the firm, then the               Court  was  to exercise its discretion  as  to               whether  it would allow execution to issue  or               not,  and  upon what terms,  and,  as  justice               seemed  to  require, might let  in  the  party               sought to be trying the action over again, but               by  giving him, as against the application  to               make  him  answerable,  the  benefit  of   any               defence which he might have had if he had been               made  a party on the record or had had  notice               the proceeding, so as to relieve him from  the               risk  of  suffering by the  collusion  or  the               improper defence of his co-partner." This would show that the defences which the person  summoned to  answer  an  execution  application  can  raise  are  the defences  open to him if he had been summoned in  the  suit. If  he denies that he is or was a partner when the cause  of ’action arose, the issue to be tried would be only that.  If he  admits that he is or was a partner at the material  time he  can defend on the ground that the decree was the  result of collusion, fraud or the like. In  Ellis  V. Wadeson (1), an action was brought  against  a firm  in  ’the firm name.  There were two partners,  one  of whom  died  after the writ and  appearance.   The  surviving partner  put  in a defence not on behalf of the firm  but  a personal defence to the action, but this was disallowed.  It was  pointed  out  that if a partner is not  served  and  is ignorant  of the action, execution cannot be levied  against him unless he is given an opportunity and the plaintiff must establish  his liability as a partner of the firm,  but  the plaintiff (1)  (1989) 1 Q.B.D. 714. 202 is not required to meet a defence of a personal character. Again,  in Davis v. Hyman & Co. (1), in an action against  a firm,  only one person entered appearance, and judgment  was

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entered against the firm.  When the plaintiff applied for  a summons  against another person under 0. XLVII. a, r. 8  [0. 21, r. 50(2)], the issue to be framed by the master was :               "Whether  the  said S. M. H. was or  has  held               himself  out  as a partner  in  the  defendant               firm." Phillimore, J., modified the issue to read:               "Whether S. M. H. was at the date the bill  of               exchange sued on was given or at the date when               the  goods  were  supplied, a  member  of  the               defendant firm of Hyman & CO."               The  Court  of  Appeal vacated  the  order  of               Phillimore, J. Stirling, L.J. observed:-               "Here  we have a person who is alleged  to  be               liable ’as a member of the defendant firm, and               the  only question which requires solution  is               whether his liability arises from his being  a               member  of  the firm or from his  having  held               himself out as a partner ... ........               It is suggested that, if this form of order is               adopted,  the defendant in the issue might  be               deprived  of some defence that he  might  have               had  if he had been served with the  writ  and               had an opportunity of appearing in the action.               As to this I would say that under the rule the               question  to be determined is the general  one               of the liability, as a member of the firm,  of               the person sought to be charged, and it  seems               to  me that an issue could, in a proper  case,               be so framed as to include any               (1)   [1903] 1 K.B. 854.               203               proper defence.  No such defence is  suggested               in the present case." In   Weir & Co. Mc Vicar & Co. (1), the action was against a firm.   A  person  who  was  served  as  a  partner  entered appearance under protest denying that he was a partner.   It was  held  that  he could not at the  same  time  raise  the defence  of  the firm, nor could he insist  that  the  issue regarding  his  being a partner be tried  first.   Scrutton, L.J.,  referred to the provisions of O. XLVIII. a, r. 8  [O. 21,  r. 50,2)], to compare the position in the trial of  the suit and that in execution, and made the following remarks :               "  ... Order XLVIII. a, r. 8 provides that  an               issue  may  be directed to  try  the  question               whether  the alleged partner or not.   But  it               seems clear that in that issue he cannot raise               the question of the liability of the firm, for               if  he  could  you  might  have  two  separate               judgments on the same cause of action, the one               already obtained for a specified amount in the               action  against the firm, and the  other,  for               possibly  a reduced amount or for  nothing  at               all, on the trial of the issue under r. 8. The               only question that can be raised on the  trial               of  that issue is whether the  person  against               whom execution is sought was a partner at  the                             material time or not."               It was also observed in that case:               "Order XLVIII. a, r. 8, assumes that  judgment               has already been obtained against the firm  by               proper service, and then proceeds to point out               who  are the persons against whom it is to  be               enforced." The English cases thus establish that even in an action  the

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defences may be of two kinds-(1) a (1)  [1925] 2 K.B. 127. 204 personal defence that a person summoned as a partner is  not a  partner  and was not a partner at the time the  cause  of action  accrued  (2) defence of the firm on  the  ground  of collusion, fraud or the like but not a personal defence.   A person who raise the first defence is precluded from raising the second, and a person who admits that he is a partner can only defend the firm but Dot himself.  These two rules apply to  persons summoned as partners.  Persons Dot  summoned  as partners  need  not  appear.  But their  liability  by  that reason alone is neither enlarged nor discharged.  Indeed, in our Code also, 0. 21, r. 50(4), lays down:               "Save   as   against  any  property   of   the               partnership, a decree against a firm shall not               realase, render liable or otherwise affect any               partner therein unless he has been served with               a summons to appear and answer." Where  the person is sought to be made liable in  execution, the defences he can raise, according to the English  rulings above  examined, are: (i) he can establish that he is not  a partner  or  that  he was not a partner when  the  cause  of action  arose,  and ,the plaintiff can prove  that  he  held himself  out as such ; (ii) he can relieve  himself  against collusion  and  fraud of his partner.  He  cannot,  however, raise  a defence to have the action tried over again and  he cannot  raise a defence personal to himself as  against  his partner or partners. We  shall now consider the decisions of the High  Courts  in India.  It will be found that, with the exception of one  or two  rulings,  the same views have been expressed  in  India also.   In Jagat Chandra Bhattacharjee v. Gunny Hajee  Ahmed (1). a summons was served upon. the firm but not upon one K. A decree was obtained against the firm and the decree-holder applied to execute it (1)  (1926) 1. L.R. 53 Cal. 214. 205 against the legal representatives of K by attaching property forming  the  estate  of K. It was admitted  that  K  was  a partner.  It was held that the assets of A were liable.  Sanderson, C. J., held that if in an inquiry under  0.  2  1, r. 50(2), it were  decided  that  a  person summoned as a partner was, in fact, a partner, his liability is  established.  ’The intention of the rule is to  give  an opportunity  to  such  a person to  dispute  his  liability. Bucklund, J., held that if after appearance the liability is admitted  the Court may grant leave fourthwith, and that  it is not open to the person summoned to challenge the decree. In  In re Malabar Forests & Rubber Co.(1), Mirza,  J.,  held that where a decree has once been passed against a firm,  an individual  partner who was not summoned personally, may  be summoned in the execution proceedings, and can contend  that he was not a partner but cannot be allowed to challenge  the authority  of  the other partner or partners  to  enter  the transaction in dispute.  In Bhagwan v. Hiraji(2), Patkar and Murphy,  JJ., took a different view.  In that case,  a  plea that the partners were not authorised to refer a dispute  to arbitration  was allowed to be raised.  Reliance was  placed upon  the  fourth  sub-rule of 0. 21,  r.  50.   In  Coverji Varjang v. Cooverbai Nagsey (3 ),the judgment- of Wadia, J., from  which an appeal was taken to the Divisional  Bench  is printed.   In that judgment, Wadia, J., held that  under  0. 21, r. 50(2), the person summoned to show cause may not only prove  that  he was not a partner but  take  other  defences

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appropriate  to  his  own  liability.   The  learned   Judge apparently  differed from Mirza, J., and preferred the  view in  Bhagwan v. Hiraji(2), and pointed out that the view  was accepted in Tolaram Nathmull v. Mahomed Valli Patel (4)  and Chhatoo Lal Misser & Co. v. Naraindas Baijnath Prasad (5). , In the last mentioned case, two defences (1) A.I.R. 1932 Bom.334.  (2) A.I.R. 1932 Bom. 516. (3) A.I.R. 1440 Bom.330   (4) (I.L.R. [1939] 2 Cal. 312. (5) (1928)     I.L.R. 56 Cal. 704. 206 were raised- (1) that the person summoned was not a partner, and  (2)  that the decree could not be  personally  executed against him as he was a ward under the U. P. Court of  Wards Act.  The second plea was one of a special protection  under law, and the case is thus distinguishable. The.  Bombay view has, however, changed in recent years.  In Rana Harkishandas v. Rana Gulab das (1), Gajendragadkar  and Gokhale,  JJ., dissented from Bhagwan v. Hiraji(2) and  laid down that in an enquiry contemplated under 0. 21, r.  50(2), the  only  question  that can be gone into  is  whether  the person summoned as a partner to show cause was a partner  at the material time or not.  The learned Judges observed  that unless the plea on this point by the person summoned to show cause succeeded, leave could not be withheld.  According  to the learned Judges, ’liability" in sub-r. (2) of r.50  means liability  as a partner.  They relied upon the  decision  of the  Calcutta High Court in C. M. Shahani v. Havero  Trading Co.  (3), in which Das, J. (as he then was), and on  appeal, McNair  and  Gentle, JJ., had taken the same  view  and  had dissented   from   the   earlier   Calcutta   view.     Rana Harikishandas’s  case(1)  was followed by  another  Division Bench of the Bombay High Court in Maharanee Mandalsa  Kumari Devi  v. M. Ramnarain Private Ltd. ( 4)  A similar  view was earlier expressed by the Madras High Court in Kuppuswami  v. Polite Pictures(5). In our judgment, the view expressed in these later cases  is the correct one.  As we have pointed out, 0. 30 of the  code permits suits to be brought against firms.  The summons  may be  issued  against  the firm or  against  persons  who  are alleged  to  be partners individually.  The  suit,  however, proceeds only against the firm.  Any person who is summoned (1) I.L.R. [1956] Bom. 193. (2) A.I.R. 1932 Bom. 516.8. (3) (1944),51 C.W.N.488. (4) I. L. R.[ 1959] Bom. 146. (5)1.L.R.[1955] Mad..1106 207 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 not enter upon issues between themselves.  When the decree is passed, it 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.  They are  (1) persons  who appeared in answered to summons served on  them as  partners and either admitted that they were partners  or were  found to be so, and (2) persons who were  summoned  as partners  but staved away.  The decree can also be  executed against  persons  who  were  not summoned  in  the  suit  as partners, but r. 50(2) of 0. 21 gives them an opportunity of showing cause and the plaintiff must prove their  liability. This enquiry does not entitle the person summoned to  reopen the  decree.  He can only prove that be was not  a  partner, and  in  a  proper case, that the decree is  the  result  of

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collusion, fraud or the like.  But, he cannot claim to  have other  matters tried, so to speak, between himself  and  his other partners.  Once he admits that he is a partner and has no special defence of collussion, fraud, etc. the Court must give leave forthwith. In our opinion, of the three constructions suggested by  the learned  Attorney-General,  the  widest  meaning  cannot  be attributed to the word "liability". The proper meaning  thus is that primarily   the question to try would be whether the person    against  whom the decree is sought to be  executed was a partner of the firm, when the cause of action accrued, but  he may question the decree on the ground of  collusion, fraud or the like but so as Dot to have the suit tried  over again  or  to  raise issues between himself  and  his  other partners.  It is to be remembered that the leave that is 208 sought  is  in  respect of execution  against  the  personal property  of such partner and the leave that is  granted  or refused  affect only such property and not the  property  of the firm.  Ordinarily, when the person summoned admits  that be  is a partner, leave would be granted, unless he  alleges collusion,  fraud  or the like.  No such question  has  been raised  in  this case, and the decision given  by  the  High Court cannot be disturbed. The appeal fails, and is dismissed with costs. Appeal dismissed.