Skip to content


State Bank of India Vs. Ramakrishna Pandurang Barve and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 231 of 1978
Judge
Reported inAIR1983Bom142; 1982(2)BomCR556; 1982MhLJ735
ActsCode of Civil Procedure (CPC), 1908 - Order 30, Rule 1
AppellantState Bank of India
RespondentRamakrishna Pandurang Barve and anr.
Appellant AdvocateK.Y. Mandlik, Adv. i/b.,;Little & Co.
Respondent AdvocateS.M. Mahamane,;Dilip Karnik and;K.J. Abhyankar, Advs.
Excerpt:
.....for recovery of partnership debt was dismissed - the firm and the other partners against whom the suit was decreed did not join as party-respondents - it was held that the appeal was incompetent for non compliance with order 30, rule 1 of the civil procedure code, 1908. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is..........a decree against the firm that satisfies the liability which was the cause of action for the suit. suit liability was not apart from the partnership and in that sense was not personal. now in appeal what is being sought is the variation of the decree against the firm without joining the firm as party-respondent and, in our view, that should be impermissible in law.8. in the result, we hold that the present appeal is incompetent as filed against two of the defendants, omitting the partnership and the other defendants. in a given case. the question of joining the partnership and the remaining partners, who do not complain against the decree, as proper or necessary party to an appeal will have to be appropriately gone into in case a prayer is made for such joinder. in the present.....
Judgment:

Masodkar, J.

1. After hearing the learned Counsel for both parties, it appears to us that the appeal as filed is incompetent in view of the provisions of Court. XXX. R. 1 of the Civil P. C.

2. The initial suit was filed by the present appellant against the partnership and the partnership was impleaded as defendant No. 1 while the partners were shown as defendants Nos. 2 to 5. As the issues indicate, there were different defences taken by different defendants and all the issues were tried and the trial Court decreed the claim against the firm and defendant No. 2 and defendant No. 4. The suit was however, dismissed against defendants Nos. 3 and 5.

3. In the appeal against that dismissal, the partnership has not been impleaded nor has it been joined nor have the other defendants been joined or impleaded.

4. It is an admitted position that the cause of action was for the recovery of the partnership debt and the liability of each of the defendants arose because of the partnership debt. The basic principle operative in the matters of partnership is that a firm or partnership is not a legal person but is a compendious name for the partners who become related because of the agreement of partnership. When a suit is brought against a firm, the legal effect is that it is brought, though in the name of the firm, against all those who are the partners. (See Purushottam & Co. v. Manilal & Sons. : [1961]1SCR982 ). A decree made in such a suit in law is against all the partners. Therefore, the position in law with regard to suits against partnership for recovery of debts due does not admit any doubt.

5. The provisions O. XXX, R. 1 as well as the provisions of O. XXI. R. 50 of the Civil P. C. go to indicate that law contemplates, in such matters, suit to lie only against partnership firms. The other Rules of O. XXX further indicate that a person summoned as partner can prove that he is not a partner can prove that he is not a partner and never was: but if he raises that defence, he cannot defend the firm. Persons who admit that they are partners may defend the firm. take as many pleas as they like but cannot enter upon issues between themselves. When the decree is passed, it is against the firm. Such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually, being persons who appeared in answer to summons served on them as partners and either admitted that they were partners or were found to be so and persons who were summoned as partners but stayed away, (See Gambhir Mal v. J. K. Jute Mills, : [1963]2SCR190 ). The decree made in such suit clearly goes to involve the partnership and the persons who were summoned with regard to their liability under the decree. It should follow that when that decree is under challenge for reason of being inadequate or otherwise, the partnership or all admitted partners should necessarily be parties for effectually dealing with such a challenge.

6. The decree under appeal before us is clearly a decree of the character and of such a type and what the present appellants are seeking to do is to vary the terms of that decree. Such an appeal. therefore. which seeks to vary the terms of the decree so as to make the respondents also liable for the firm's debt, on principles of O. XXX, R. 1 of the Civil P. C. could not be instituted without joining the firm as party-respondent or in lieu of it, all the partners. As no appeal is filed against the firm. though the suit, admittedly. was against the firm, it is indeed difficult to hold that the present appeal is competent.

7. Mr. Mandik, however. submitted that having obtained a decree against the firm, there was no necessity further to join the firm as a party-respondent and such an appeal should be treated as competent. AS we have indicated that the principles that governed the filing of the suit would and should govern the filing of the appeal. we do not accept the broad proposition that such an appeal without joining the firm for the purpose of varying the decree against the firm concerning the recovery of the partnership debt is maintainable. This is more so because to the suit the firm as well as the other partners were parties. Indeed if it were possible to infer that the debt against the firm for the recovery of which the suit was filed has been decreed and as such making the other respondents liable is the only subject-matter of the present appeal. then nothing will survive in the appeal. for there exists a decree against the firm that satisfies the liability which was the cause of action for the suit. Suit liability was not apart from the partnership and in that sense was not personal. Now in appeal what is being sought is the variation of the decree against the firm without joining the firm as party-respondent and, in our view, that should be impermissible in law.

8. In the result, we hold that the present appeal is incompetent as filed against two of the defendants, omitting the partnership and the other defendants. In a given case. the question of joining the partnership and the remaining partners, who do not complain against the decree, as proper or necessary party to an appeal will have to be appropriately gone into in case a prayer is made for such joinder. In the present premises. however. we think that the frame of the appeal is not in accordance with the provisions of O. XXX, R. 1 of the Civil P. C. nor without the partnership and the other partners there can be effective adjudication in the appeal. The appeal. therefore. fails and is dismissed with no order as to costs.

9. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //