Norman Kemp. Kt., A.C.J.
1. This is a reference under the Aden Act II of 1864. Under Section 8 of that Act the value of the subject matter of the suit in appeal being over Rs. 1,000 the Resident had to accede to the request of the applicant to refer the case to this Court.
2. This application arises out of a suit filed at Aden for the price of a certain quantity of petrol supplied to the firm of Haji Abadi & Sons. The suit was filed against the company through its managing partner, Abdul Hamid. A decree was passed and subsequently under Order XXI, Rule 50, proceedings were taken against one Haji Abadi bin Haspan, father of Abdul Hamid. Haji Abadi Hassan denied that be was a partner in the firm and said that he was a partner in another firm Haji Abadi Hassan. The trial Court found against this contention and held that he was a partner and that finding has been confirmed in appeal, but the Resident under the circumstances I have mentioned has referred the case to us for a decision on the question whether the evidence proves Haji Abadi Hassan was a partner in the firm of Haji Abadi & Sons.
3. A preliminary point has been taken that under Section 8 no such reference can lie because the appeal was not in a suit, but an appeal from an order passed under Order XXI, Rule 50, which it is alleged is an execution proceeding, and the case of Abdulla Mahomed Yahia Jabli v. Salem Mesha Menahim Mesha (1927) Civil Reference No. 253 of 1926, decided by Crump Baker JJ., on March 15, 1927, (Unrep) was cited in support of this contention. But that was a case where clearly the order was one passed in execution. It concerned the sale under a mortgage decree of the mortgaged property and therefore could not properly be considered an order in a suit. In the present case, although we feel that the matter is not entirely free from doubt, we are of opinion that this reference lies. In the first place, Order XXX of the Civil Procedure Code, which entitles partners to be sued in the firm's name, is merely a matter of convenience and not intended to take away any rights and liabilities of partners prior to the introduction of that procedure. If we sustain the objection we would have to hold that the effect of this procedure is to deprive a defendant who has not been served as a partner in the firm of the right to demand a reference under the Aden Act which he would have had if he had been served as a partner. This affects the liability of that partner and that was certainly not the intention of the procedure laid down in Order XXX. The Aden Act of IS64 obviously did not contemplate when Section 8 was enacted that in 1908 a new procedure under Order XXX of the Code would be introduced.
4. Then again, the right to deny partnership and ask for a reference cannot depend upon the plaintiff's election whether the individual claiming to be a partner should be served with the writ of summons or not. It would be giving the plaintiff that option if we were to bold that in the present case no right to a reference existed. All that a plaintiff would have to do would be to sue the firm and not to serve a particular defendant, alleged by him to be a partner. The issue as to partnership would not then be determined in the suit, but would be determined after the decree against the firm. The practice on the Original Side of this High Court now adopted is as follows :-
5. Where a defendant denies that he is a partner, a specific issue is framed before the passing of the decree against the firm and that issue is tried in the suit and there is therefore an adjudication prior to the decree. No question of his liability in execution therefore arises. Under the circumstances it is inequitable to hold that a reference does not lie at the instance of the applicant.
6. Further, Order XXI, Rule 60, provides in Sub-rule (3) that the order passed under that rule shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
7. [The rest of the judgment is not material to this report.]