Skip to content


Natvarlal Tribhovandas Vs. E.D. Sassoon and Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectArbitration;Civil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 362 of 1926
Judge
Reported in(1927)29BOMLR921; 103Ind.Cas.256
AppellantNatvarlal Tribhovandas
RespondentE.D. Sassoon and Co. Ltd.
DispositionAppeal allowed
Excerpt:
.....order xxi, rule 50, order xxx, rule 2-suit against firm-names of partners given by attorney of firm-decree against firm-execution proceedings-person whose name is given as partner can prove he is not partner.;where in a counter-claim against a firm, the names of partners in the firm are disclosed by the firm's attorneys, and a decree is passed against the firm on the counter-claim, it is open to one or more of the persons so named to show in execution proceedings that he or they is or are not partners in the firm.;order xxi, rule 50, is not controlled by order xxx, rule 2(3), of the civil procedure code 1908.;the scope of order xxi, rule 50, is to provide that no person shall be held liable in the execution of a decree against a firm unless his position as a partner of the firm has..........decree against a firm, and the provisions of order xxi, rule 50, are therefore applicable. in such cases execution is permitted as a matter of course against the property of the partnership or against any person who is within the terms of clause (b) or clause (c) of the first paragraph of that rule. now it cannot be said here that the appellant appeared in his own name under rule 6 or rule 7 of order xxx, or that he has admitted on the pleadings that he is a partner, or that he has been adjudged to be a partner. there is no appearance by him in his own name, and no admission made by him, and no adjudication. his case is that he never authorized the plaintiffs' solicitors to state that he was a partner in the firm, and in the absence of. proof of any such authority there is clearly no.....
Judgment:

Crump, J.

1. There were certain dealings between the firm of Chunilal Lallubhai and the firm of E.D. Sassoon, which dealings were referred to arbitration. An award followed upon that arbitration, and the firm of Chunilal Lallubhai sued to set aside the award. The plaint was filed on December 2, 1923. The defendants counterclaimed on the footing of the award, and called upon the plaintiffs' solicitors to disclose the names of the partners in the firm. That was presumably done under the provisions of Order XXX, Rule 2. In reply on February 4, 1924, the plaintiffs' solicitors gave five names including the name of Natvarlal Tribhovandas who is now the appellant before us. The suit was dismissed with costs and the counterclaim was allowed with costs. The decree was against the firm of Chunilal Lallubhai. This decree was then transferred for execution to the Court, of the First Class Subordinate Judge of Broach, and defendants Messrs. E.D. Sassoon & Co., who were the decree-holders, moved the Court for execution. The appellant Natvarlal Tribhovandas contended that he was not a partner, but the Court decided that by reason of the terms of Order XXX, Rule 2, Sub-rule (8), that point was not open to him, and directed that execution should proceed against the appellant personally. Against that order he now appeals.

2. The decree was a decree against a firm, and the provisions of Order XXI, Rule 50, are therefore applicable. In such cases execution is permitted as a matter of course against the property of the partnership or against any person who is within the terms of Clause (b) or Clause (c) of the first paragraph of that rule. Now it cannot be said here that the appellant appeared in his own name under Rule 6 or Rule 7 of Order XXX, or that he has admitted on the pleadings that he is a partner, or that he has been adjudged to be a partner. There is no appearance by him in his own name, and no admission made by him, and no adjudication. His case is that he never authorized the plaintiffs' solicitors to state that he was a partner in the firm, and in the absence of. proof of any such authority there is clearly no admission. Clearly again he is not a person who has been individually served with summons as a partner, and therefore he does not come within Clause (6) or Clause (c) of the first paragraph of Rule 50. But it is argued before us, and that argument has found favour with the lower Court, that by virtue of certain words in Order XXX, Rule 2 (3), this question of partnership is in some way concluded. Referring to the disclosure made of the names of the partners the Sub-rule (3) runs as follows: 'The suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they (that is, the persons whose names are disclosed) had been named as plaintiffs in the plaint.' Taking those words as they stand, I should be inclined to hold that they refer to the proceedings in the suit and they have no application to anything that follows after the suit has reached the stage of a decree and has thus been completed. It is well known that Order XXX is based upon Order 48A of the Rules and Orders of the Supreme Court, and the only substantial difference is that what is Rule 8 in Order 48A has been taken out of that Chapter for the purposes of the Civil Procedure Code and re-appears as Order XXI, Rule 50, but that cannot in any way affect the consideration of the relevant rules. If Order 48A of the Rules of the Supreme Court is read, it is extremely difficult to suppose that Rule 8 was intended to be controlled in any way by Order 48A, Rule 2. Had that been so, undoubtedly apt words would have been chosen to express that result. Similarly, therefore, there can be no reason to hold that Order XXI, Rule 50, is controlled by the words which I have cited from Order XXX, Rule 2(3), even supposing that those words have any application to anything beyond the progress of the suit itself. The whole scope of Order XXI, Rule 50, as I understand it, is to provide that no person shall be held liable in the execution of a decree against a firm unless his position as a partner of the firm has been in some way established. And Clauses (b) and (c) of the first paragraph lay down certain cases in which it may be safely said that a party knows the suit has been launched against him on the allegation that he is a partner in the firm. In those cases clearly nothing further remains to be decided as regards his liability, but in the absence of any decision or any basis for execution against him, the case put forth under SUb-rule (2) of Rule 50 arises, and in those cases the party who desires execution against any person must apply to the Court for leave, and if the liability is not disputed, the Court grants leave; if the liability is disputed the issue as to partnership has to be tried. That is the general scope of Order XXI, Rule 50, and, as I have said, to make it in any way subject to Order XXX, Rule 2 (3), as the lower Court has done, would be to make the provisions of Order XXI, Rule 50, to a large extent nugatory. It must also be pointed out with reference to the particular case before us that Order XXX, Rule 2, deals with the case of plaintiffs, and in so far as we are concerned with the counterclaim it must be remembered that the counterclaim is a cross-suit, and that the firm of Chunilal Lallubhai were defendants for the purposes of that cross-suit, and therefore upon that ground also it would be difficult to hold that Order XXX, Rule 2(3), had any application to this matter. It does not appear that any action was taken under Order XXX, Rule 1, which applies to the case of plaintiffs and defendants alike. Upon these grounds I am of opinion that the decision of the lower Court is incorrect and cannot be upheld. I do not refer to cases that have been cited including that which is relied upon in the lower Court's judgment, because they do not really touch the question before us. No cases have been cited bearing upon the inter-relation of Order XXI, Rule 50, and Order XXX, Rule 2, and that being so, we must interpret those rules in the light of the presumed object of the legislature, and having regard to that presumed object the conclusion is as I have stated. We allow the appeal with costs in the lower Court also, and direct that the darkhast be dismissed as against the present appellant. This order will in no way affect the darkhast as against those persons who have not appealed against the order of the lower Court.

Baker, J.

3. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //