1. This is a summons on the part of two persons who have been served with the writ of summons herein as partners in the defendant firm asking that the issue whether they were partners in the defendant firm at the time of the accrual of the cause of action may be set down for trial on a date to be fixed by the Court; or in the alternative that the service on them of the writ of summons be set aside on the ground that they were not partners in the defendant firm at the time of the accrual of the cause of action or are not liable as such.
2. Rule 8 of Order XXX, which corresponds with Rule 7 of the Rules of the Supreme Court 0. 48a, as they originally stood, provides that any person served with a summons as a partner tinder Rule 3 may appear under protest, denying that he is a partner, but such appearance shall not preclude the plaintiff from otherwise serving a summons on the firm and obtaining a decree against the firm in default of appearance where no partner has appeared. There is a decision on the English rule, Order 48a, Rule 7, which at the time of that decision corresponded with Rule 8 of Order XXX of the Civil Procedure Code, Weir & Co. v. McVicar & Co.  2 K.B. 127 in which it was held by the Court of Appeal that a person served as a partner, who enters an appearance under protest denying that he is a partner, is not entitled to dispute the liability of the firm, and consequently cannot obtain an order for an issue to try the question of his partnership before the other issues in the action. That decision, though not binding upon me, is directly in point having regard to the similarity of Rule 7 of Order 48a, as it then stood, and Rule 8 of Order XXX.
3. Mr. Engineer who appears in support of the summons concedes that the applicants, inasmuch as they deny that they were partners, are not entitled to defend the suit. He concedes that they could not put in a written statement denying that they were partners, and that if they put in a written statement, they could only do so on behalf of the firm, which would involve an admission by them that they were partners. He submits, however, that they ought to be entitled to apply to have the service of the writ upon them set aside and that they should not be compelled to wait until a decree is obtained against the firm and an application made by the plaintiff under Order XXI, Rule 50, for leave to issue execution against them as partners.
4. Mr. Daphtary for the plaintiff on the other hand submits that the real point of Rule 8 of Order XXX is to ensure that the plaintiff may be in a position to prove service on the firm, and that the question of the liability of any partner who disputes partnership may never arise at all unless first the plaintiff obtains a decree against the firm and then attempts to enforce it against any partner or partners who have entered an appearance under protest. He further submits that it would merely increase the costs to order the trial of a preliminary issue of partnership which costs might never be necessary if the plaintiff either lost the suit or decided not to proceed in execution against the alleged partners.
5. Mr. Engineer relies upon the decision of Chief Justice Macleod in Vithcddas v. Hansraj : AIR1921Bom48(1) . In my opinion that case is not an authority for the proposition for which he contends, viz., that a person served as a partner has a right to apply to have the service of the writ set aside upon the ground that he was not a partner. In that case the summons had been served upon Narandas Amarchand as a partner in the firm of the defendants. Narandas put in a written statement denying that he was a partner in the defendants' firm and that he had anything to do with the contracts in suit, and submitted that the suit against him should be dismissed with costs. Subsequently Narandas made an application to the Court asking that an order whereby the suit had been adjourned to enable the writ of summons to be served upon another partner should be vacated and that the suit should be placed on board for trial of the issue as to whether he was a partner in the defendants' firm. The learned Judge allowed the order for adjournment to stand to enable the plaintiff to serve the summons in due course on the defendant firm, and he made an order on the summons, which had asked that the suit should be placed on board for trial of the issue of partnership, that an issue whether Narandas Amarchand was a partner should be set down for trial in the following February. Mr. Engineer drew my attention to another decision in which Chief Justice Macleod was sitting in the Appeal Court, viz., Chairy v. Pohoomal I.L.R. (1926) 50 Bom. 665. This decision appears to me to be inconsistent with his earlier judgment. In the later case, which was a summary suit, the alleged partner applied for an order that leave should be granted to him to appear and defend the suit or in the alternative to appear and defend the suit to the extent that he was not a partner at any time material to the suit. The learned Chief Justice, after discussing the relevant provisions of Order XXX at length, said, and in my opinion said quite independently of any question arising under Order XXXVII, the suit being a summary suit, that (p. 671) ' In any event the defendant entering an appearance under protest could not be entitled to ask for the trial of an issue whether he was a partner.' Those observations, with which I entirely agree, are dead against the contention raised by Mr. Engineer. With respect I prefer the later opinion of the learned Chief Justice, sitting in the Appeal Court, to his earlier opinion sitting as a Judge of first instance.
6. On our rule, as it stands at present, I think that I ought to follow the view taken by the English Appeal Court in Weir & Co. v. McVicar & Co. and the opinion expressed, in Charry v. Pohoomal. I may point out that the English practice has been altered by an amendment to Rule 7 of Order 48a, and under that practice as altered the present application would be competent. Under our rule as it stands, in my opinion, it is not competent. Accordingly I dismiss this summons with costs, and I certify for counsel. Having regard to the adjournment I quantify the costs at Rs. 195.