1. [His Lordship after dealing with matters not material to this report continued :] When this case was called on before me, Mr. Tendulkar informed me that he appeared under protest for three alleged partners, (1) SugnichandMangatram, (2) Radhelal Hanandlal, and (3) Raghubarsing Oomarsing, who had been duly served as such.
2. At the close of the case, he asked me to reserve him liberty to apply in the suit for the costs of entering an appearance under protest in twoevents (1) the event of the plaintiffs not applying under Order XXI Rule 50, for leave to issue execution against these three persons, and (2) the event of the plaintiffs so applying for leave and the execution Court holding that these three persona were not partners.
3. The difficulty involved in a case, where an alleged partner enters an appearance under protest as regards the costs incurred by him in doing so, appears to me to be this, that unless some provision is made in the decree which finally disposes of the suit for costs incurred in the suit up to the date of the hearing of the decree, the Judge will be functus offcie. It was suggested by Mr. Kania at first that these costs might in some manner be provided for in the execution proceedings if they are taken. I am quite unable to see how the executing tribunal could deal at all with costs incurred not in those proceedings but in the suit itself. Moreover, if no execution proceedings are taken, the question arises by what machinery could the alleged partners then obtain an order for the costs of entering an appearance under protest,
4. It must be borne in mind that a plaintiff who serves persons as alleged partners has the option if they enter an appearance under protest of applying by summons to strike out theirappearance under protest. If that course is adopted, an issue might then be directed for the determination of the question. If the plaintiff does not adopt this course, it appears to me that the persons served as alleged partners may, not without reason, assume that the plaintiff notwithstanding their appearance under protest is satisfied that they really are partners. If, therefore, the plaintiff does not adopt the course which is open to him of applying to strike out the appearance under protest, it does not seem to me that it lies in his mouth to complain that the persons so served, although they have taken no part in the proceedings except to enter an appearance under protest, should apply at the trial simply that leave may be reserved to them to apply in the suit in the future for their costs in the event of the plaintiff not applying for leave to issue execution against them or failing in those proceedings if he takes them.
5. In my opinion, the alleged partners in this case were entitled to make this application before me. Mr. Kania has pointed out that under the law of limitation, his clients would be entitled to issue execution within twelve years of the date of the decree. He admitted, however, that it appeared to be quite unreasonable that these alleged partners should have this matter hanging over their heads for that period, and he submitted that a period of two years would be a reasonable time within which the plaintiffs should make up their minds whether they desired to apply for leave to issue execution against these alleged partners or not, Mr. Tendulkar strongly resisted this submission, and contended that a period of six months would be amply sufficient, I do not agree with him. The firm of which these three persons are alleged partners carry on business at New Mandi in Muzzafarnagar. The plaintiffs may prefer instead of applying for leave to issue execution against these three alleged partners to exhaust all their remedies against the assets of the firm and against the persons who are admittedly partners. Their efforts in that behalf may take a long time and may be resisted byproceedings which are all too familiar in this country. Accordingly, I think that the period suggested by Mr. Kania is not unreasonable. Accordingly, I reserve liberty to these three persons to apply in the suit for the costs of entering their appearance and of today's application, after the expiration of two years from today, if, in the meantime, no steps are taken for leave to issue execution against them, and if such steps are taken within the period of two years, liberty to apply for those costs, if such proceedings fail.