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Sumar Ahmed and ors. Vs. Haji Ismail Haji Habib - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom159
AppellantSumar Ahmed and ors.
RespondentHaji Ismail Haji Habib
Excerpt:
.....is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - what the respondent now contends for is, in fact, so complete a departure from the ordinary law of partnership that we cannot presume that to have been what the decree meant, unless it distinctly says so;.....says so; but what the decree of the appellate court on the face of it orders, is the taking of an ordinary partnership account. the specific mention of the credit to be allowed to the respondent seems to us to be sufficiently accounted for from the fact that it was probable that he had paid a larger sum, under pressure of the law, than rs. 58,950-3-58 when he paid in full the claims of certain creditors against the partnership, and it was to prevent any disputes on this ground that the specific direction as to the credit to be given to the respondent was inserted in the decree of the appellate court. the appellants are responsible for their shares only, under the terms of the partnership, in the sums paid by the respondent to the creditors of the partnership since 18th november 1866,.....
Judgment:

Michael Westropp, C.J.

1. It is not alleged on behalf of the respondent that there is a substantial error in the decree of the Appellate Court. If there be such an error occasioned by the fault of the officer in drawing up the decree, the proper remedy, after the decree has been sealed, is review. But it is said that by comparing that decree with the notes of the Deputy Registrar, or with an alleged copy of, or extract from, the notes of Sir R. Couch, we shall perceive that the decree means something more than it now appears to us to do. That something more, however, is, in fact, a most important variation from the decree now before us. We think we cannot look at the notes of the Deputy Registrar, or those said but not proved to have been taken from the book of Sir R. Couch for the purpose of construing the decree of the Appellate Court. That decree should be construed as it stands, without any reference to those notes. We do not say that we might not refer to such notes on a motion to amend a clerical error in the decree; but that is not what we are now asked to do, and we do not think that we can refer to them at all to explain or to aid us in construing the decree. In Hirji Jina v. Naran Mulji we declined to be bound by a Judge's explanation of his own decree, and held that we must construe the decree as we found it, and that if it were equally susceptible of two constructions, of which one rendered it in accordance with law, and the other did not, we should give it the former. These notes cannot stand upon higher ground than the explanation of the learned Judge himself. We must, therefore, refuse to look at the notes, and limit ourselves to the decree. Being so limited to the decree, we find it to be one for the taking of a partnership account in the ordinary way. The terms of the adjustment now relied on by the respondent are not set up by him in his plaint, nor is any mention of them made either in the decree of Arnould, J., or in that of the Appellate Court. What the respondent now contends for is, in fact, so complete a departure from the ordinary law of partnership that we cannot presume that to have been what the decree meant, unless it distinctly says so; but what the decree of the Appellate Court on the face of it orders, is the taking of an ordinary partnership account. The specific mention of the credit to be allowed to the respondent seems to us to be sufficiently accounted for from the fact that it was probable that he had paid a larger sum, under pressure of the law, than Rs. 58,950-3-58 when he paid in full the claims of certain creditors against the partnership, and it was to prevent any disputes on this ground that the specific direction as to the credit to be given to the respondent was inserted in the decree of the Appellate Court. The appellants are responsible for their shares only, under the terms of the partnership, in the sums paid by the respondent to the creditors of the partnership since 18th November 1866, and are to be credited with the respondent's share in the sums paid by them to the creditors of the partnership since the same date.


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