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Kanji Vishram Vs. Jivraj Dayal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Civil Revision Application No. 106 of 1929
Judge
Reported inAIR1930Bom412; (1930)32BOMLR1009
AppellantKanji Vishram
RespondentJivraj Dayal
Excerpt:
presidency small cause courts act (xv of 1882), section 38 - ' suit'-full court- jurisdiction-civil procedure code (act, v of 1908), order xxi, rule 50, sub-rule (2)-decree against firm-liability of partner.;a proceeding in which leave is applied for to execute a decree under order xxi, rule 50, sub-rule (2), of the civil procedure code, is not a suit within the meaning of section 38 of the presidency small cause courts act 1882. - .....to the same conditions as to appeal or otherwise as if it were a decree. it appeal's from sub-rule (2) of rule 50 of order xxi that where the liability is admitted the court can grant the leave. where, however, the liability is disputed; the court may determine the question of the liability of the partner against whom the application is made. it is urged on behalf of the applicant that as the liability is to he fixed against the partner against whom the application is made, and as the order is said to have the same force as a decree, the proceeding must be considered to be of the nature of a suit, and the full court had jurisdiction under section 38 of the presidency small cause courts act. in the present ease the liability was not disputed by the present applicant on the ground.....
Judgment:

Patkar, J.

1. In this case the plaintiff obtained a decree against the firm of Kanji Khimji and Company by their partner the present applicant Kanji Vishram and two others Pragji Monji and Bhimji Bhanji. The suit was tried by the Chief Judge Mr. Jhaveri and a decree was passed against the defendants on June 20, 1924. Subsequently, the plaintiff made an application for leave to execute the decree under Order XXI, Rule 50, Sub-rule (2), of the Civil Procedure Code, and it was contended by the applicant that as the plaintiff knew of the fact of the dissolution of the firm of Kanji Khimji and Company, he was not liable as a partner inasmuch as he was not individually served under Order XXX, Rule 3. The Chief Judge Mr. Chitre, before whom this application was made, came to the conclusion that the plaintiff was not aware of the fact of the dissolution of the firm of Kanji Khimji and Company when the plaintiff filed this suit. Under Order XXI, Rule 50, execution could be granted at once in the contingencies mentioned in Sub-rule (1). Where, however, the decree- holder wishes to execute a decree against any person other than those referred to in Clauses (6) and (c) of Sub-rule (1), he has to apply to the Court which passed the decree for leave, and when the liability is not disputed, the Court is entitled to grant the leave. Where, however, such liability is disputed, the Court may order that the liability of such person should be tried and determined. When such liability is tried and determined under Sub-rule (3) the order shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Against the order of Mr. Chitre, an appeal was filed to the Full Court, and the Full Court came to the conclusion that it had no jurisdiction presumably on the ground that the original decree was ex parte, and the application under Order XXI, Rule 50, Sub-rule (2), was not a suit within the meaning of Section 38 of the Presidency Small Cause Courts Act.

2. Two questions, therefore, arise for consideration, first, whether the order passed by the lower Court under Order XXI, Rule 50, Sub-rule (2), was passed without jurisdiction, and, secondly, whether the Full Court had jurisdiction under Section 38 of the Presidency Small Cause Courts Act.

3. On the first point it is urged that Order XXI, Rule 50, is governed by Order XXX, Rule 3, and Sub-rule (2) would only apply when there is no dissolution known to the plaintiff. The question, therefore, arising in the case is whether the dissolution of the firm was known to the present plaintiff at the time of the institution of the suit. Reliance has been placed on behalf of the applicant on the application made on April 30, 1924, in which the plaintiff stated that the firm of Kanji Khimji and Company closed its business at a certain place and he was not aware of the whereabouts of the partners. It would be difficult to draw an inference from that application that as a matter of fact the plaintiff knew of the dissolution of the firm of Kanji Khimji and Company. On the other hand, the finding of the learned Judge that the applicant accepted his liability as a partner in identical circumstances is based on Exhibit C in which a consent order was passed against the applicant. Further there is a clear finding that the plaintiff was not aware of the fact of the dissolution of the firm of Kanji Khimji and Company when the plaintiff filed the suit. This finding is supported by the evidence of the plaintiff who deposed that he did not know of the dissolution of the firm of Kanji Khimji and Co. We accept that finding, and therefore, the first objection fails.

4. The second question is whether the Full Court had jurisdiction under Section 38 of the Presidency Small Cause Courts Act. Section 38 runs as follows:-

Where a suit has been contested, the Small Cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit..., order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.

5. The question, therefore, arising in the case is whether the proceeding in which leave is applied for to execute the decree under Order XXI, Rule 50, Sub-rule (2) is a suit. It is urged on behalf at the applicant relying on Sub-rule (3) of the said rule, that the order shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. It appeal's from Sub-rule (2) of Rule 50 of Order XXI that where the liability is admitted the Court can grant the leave. Where, however, the liability is disputed; the Court may determine the question of the liability of the partner against whom the application is made. It is urged on behalf of the applicant that as the liability is to he fixed against the partner against whom the application is made, and as the order is said to have the same force as a decree, the proceeding must be considered to be of the nature of a suit, and the Full Court had jurisdiction under Section 38 of the Presidency Small Cause Courts Act. In the present ease the liability was not disputed by the present applicant on the ground that he was not a partner, and the question, therefore, whether he was or was not a partner was not necessary to be decided. Where, however, such liability is determined under Sub-rule (2), the order thereon shall have the force of a decree. In the present case, the only contention on which the liability was disputed was that the plaintiff was aware of the dissolution of the firm, and it was necessary for the plaintiff to serve the applicant individually and he not having been served under Order XXX, Rule 3, was not liable to have the decree executed against him. We think, therefore, that the question whether these proceedings have ended in a decree and therefore are of the nature of a suit does not really arise for decision in the present case. We think, however, that even if it be considered that the liability was disputed on the strength of the proviso to Order XXX, Rule 3, though not on the ground that the applicant was not a partner, and the order in this case had therefore the same force and was subject to the same conditions as to appeal or otherwise as if it were a decree, it does not necessarily follow that the proceeding, in which an application is made to the Court for leave to execute the decree against a partner, necessarily constitutes a suit. Such a proceeding is in the nature of a subsidiary application after the decree is passed and before the decree can be executed against the partner against, whom the application is made under Order XXI, Rule 50, Sub-rule (2). The mere fact that the order in such proceedings is considered as if it were a decree does not, in our opinion, invest such proceedings with the character of a suit-. The term 'suit' has not been defined in the Civil Procedure Code, and though it is wide enough to cover a proceeding in which a right is litigated and determined between the parties, it must, according to Section 26, Civil Procedure Code, commence with a plaint, and a proceeding which is capable of terminating in an order having the force of a decree cannot on that ground alone be held to be a suit. See Venhata Chandrappa Wayanivaru v. Venkatarama Reidi ILR (1898) Mad. 256.

6. We think, therefore, that the Full Court was right in arriving at the conclusion that it had no jurisdiction as the proceeding did not constitute a suit within the meaning of Section 38 of the Presidency Small Cause Courts Act.

7. The rule, therefore, must be discharged with costs.


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