Norman Macleod, Kt., C.J.
1. The plaintiffs filed this suit in February 1910 against firm of Hansraj Amarchand. They served he summons on one Narandas Amarchand as a partner in he defendant firm. Narandas entered an appearance in March 1920 under protest but he does not appear to have done so under Order XXX, Rule 8, except that under ha signature there are the words 'alleged partner of the defendant firm. However that may be, on the 20th July 1921, he fled a written statement denying that he was a partner in the defendant firm. On the 27th August 1921, the plaintiffs got an ex parts order for the adjournment of the suit in order that they might serve summons on the defendant Urn on the ground that the appearance of Narandas if under protest would have the effect of nullifying the previous service as regards the defendant
2. Narandas has now applied that that order should be vacated and that the suit should be placed on board for trial of the issue whether he was a partner in the defendant firm. Order XXX Rule 8 corresponds with Order XLV1II A, Rule 7, of the Supreme Court Rules. According to the English practice in such a case the plaintiff may apply by summons to strike out appearance that is entered under protest on the ground hit the party appearing was a partner in the firm sued, or Is a partner at the time the cause of action accrued; or m The alternative, to strike out of such appearance the denial of nartnership. But the plaintiff may also disregard the appearance under protest and serve the writ again as provided by rules. Having obtained judgment against the firm he may apply for leave to issue execution against the person appearing under Parest if be alleges him to be a partner. Order XXX, Rule 8, is. silent on the question whether a person appearning a Protest has a right to have that question decided by the Court or whether, if the plaintiff does not ask the Court by summons to have that question decided, he is bound to wait until the plaintiff having got a decree issues execution against him under Order XXI Rule 50. It seems to me that it is contrary to the principles of equity that any person should be liable to have a claim of this kind hanging over, him without being able to ask the Court to decide one way or the other whether or not he is liable to the claim.
3. It seems to me that there are two courses open to the plaintiff. He can take out a summons to have the question decided whether the person who so appears is not a partner; but if he does not choose to do that, then he must be considered as having accepted the position taken up by the person so served. But if that is not correct, and if the plaintiff, instead of taking out such a summons, chooses to wait until he has got a decree against the firm and retains his option to execute it against the person so served, then I think that person ha a right to ask the Court to have the question decided whether or not he is a partner in the defendant firm. The order for adjournment of the suit should stand in order to enable the plaintiff to serve the summons in due course on the defendant firm But I will make an order on this summons that an issue whether Narandas Amarchund was a partner in the defendant firm may be set down for trial in February next.
4. Costs costs in the issue.