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Adiveppa Shidlingappa Hanchimal Vs. Pragji Mohanji Lohana - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 42 of 1923
Judge
Reported inAIR1924Bom366; (1924)26BOMLR388
AppellantAdiveppa Shidlingappa Hanchimal
RespondentPragji Mohanji Lohana
Excerpt:
.....v of 1908), order x x x, rules 1, 3, order ix, rule 13--suit against firm--service of summons--ex parte decree--appplication to set aside the decree--indian limitation act (ix of 1908), article 164.;in a suit brought against a firm all the partners were mentioned in the title to the plaint and were duly served. an ex parte decree wan passed on january 11, 1922. on may 31, 1922, defendant, no. 1, alleging that he was a partner and receiver of the firm, applied to have the ex parte decree set. aside:-;that the application to set aside the decree, assuming it to be ex parte against the firm, was time-barred under article 164 of the indian limitation act.;per macleod c.j. -- it can never be said that a decree against the firm is ex pane against one of the partners because he has not..........164 of the indian limitation act an application to set aside the decree, assuming it was an ex parte decree, would be barred after thirty days from the date of the decree.3. on may 31, 1922, the first defendant made an application to the court through his attorney to have the ex parte. decree set aside. he described himself as partner and receiver of the firm of shivji kuverji & co before that litigation had commenced between the partners of the firm and the first defendant had been appointed receiver of the partnership assets. as such receiver he would be entitled to defend suits against the firm, and he would also be entitled to apply to have an ex parte. decree passed against the firm set aside, provided he made the application in time. but he has mixed up his position as an.....
Judgment:

Norman Macleod, C.J.

1. Suit No. 409 of 1920 was filed in the Court, of the First Class Subordinate Judge, Dharwar, by certain plaintiffs against the firm of Shivji Kuverji & Co. to recover Rs. 42,604-12-0 which it was alleged was due to the plaintiffs in their account with the defendant firm. The five partners in the defendant firm were mentioned in the title to the plaint, and attempts were made to serve the summons on all of them. The record of the case shows that defendants Nos 1 to 4 were absent though duly served, while defendant No. 5 at the first hearing raised certain contentious which were dealt with as preliminary issues. After those issues were decided, the Judge proceeded to hear the case on the merits when no one appeared on behalf of the defendants, and, on January 11, 1922, a decree was passed for Rs 42, 604-12-0 and costs against the firm of Shivji Kuverji & Co. Under Order XXX, rule 3, the summons could be served either upon any one or more of the partners, or at the principal place at which the partnership business was 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 might direct; and such service would be deemed good service upon the firm so sued, whether all or any of the partners were within or without British India.

2. Apart, therefore, from the case of the first defendant who says that he never received service of the summons, it is perfectly clear that service of the summons on the firm had been properly effected and the decree properly passed against the firm. Under Article 164 of the Indian Limitation Act an application to set aside the decree, assuming it was an ex parte decree, would be barred after thirty days from the date of the decree.

3. On May 31, 1922, the first defendant made an application to the Court through his attorney to have the ex parte. decree set aside. He described himself as partner and receiver of the firm of Shivji Kuverji & Co Before that litigation had commenced between the partners of the firm and the first defendant had been appointed receiver of the partnership assets. As such receiver he would be entitled to defend suits against the firm, and he would also be entitled to apply to have an ex parte. decree passed against the firm set aside, provided he made the application in time. But he has mixed up his position as an individual partner and as receiver in a most inexcusable way. The Judge on various grounds allowed the application and set aside the decree passed against the firm. Various questions of law arose in the course of the argument on this application, but without going into these it seems to me the Judge has committed material irregularities in the course of his decision by exercising jurisdiction which was not given to him by law.

4. For the purposes of this application it is only necessary to say that the suit was against the firm and the decree passed was against the firm, and the only way in which that decree could be set aside, assuming it to be ex parte, would be on the ground that the summons had not been served on the firm. Assuming that the summons had not been served on the firm, and that an ex parte decree was passed against the firm, the firm had thirty days from January 11, 1922, to make an application for setting it aside. It can never be said that a decree against the firm is ex parte against one of the partners because he has not appeared. A partner undoubtedly can enter appearance in his own name and can file a written statement, and as the Judge rightly points out, each partner can file a different written statement taking up different, defences, but the proceedings continue against the firm, and it can only be decided in execution proceedings whether a particular partner can be personally liable to satisfy the decree. As soon as a decree is passed against the firm, then the assets of the firm are liable to satisfy it, but the partner's own private property is not liable to be seized in execution unless the plaintiff served the summons on him, or unless he can be brought, within the provisions of Order XXI, rule 50.

5. It was suggested that as the defendant firm had been dissolved before the decree was passed, and that as the plaintiff knew of such dissolution, they could not proceed against the firm. But that is an error. The plaintiffs could still proceed against the firm, but they could not proceed against any partner individually if they knew the firm had been dissolved before proceedings had been taken. We must make the rule absolute and set aside the order of the learned Judge of the Court below. The plaintiffs are entitled to their costs of the proceedings.

Shah, J.

6. I concur in the order proposed. I desire to make it clear that I base my conclusion upon the ground that the application made to have the ex parte decree set aside was beyond time under Article 164 of the Indian Limitation Act. The decree was passed against a firm, and it cannot be contended in this case that the firm was not properly served. Therefore under Article 164 any person seeking to get this decree set aside, assuming it to be ex parte, against the firm, would have to make an application within thirty days from the date of the decree. The application to set aside the decree was made admittedly long after the expiration of thirty days from the date of the decree, and is clearly beyond time. As an appeal from this decree is pending I do not desire to say anything with regard to the various other points which have been argued before us.


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