1. This summons raises the question as to whether an order made under Order XXI, Rule 50, Sub-clauses (2) and (3), of the Civil Procedure Code, granting leave to the decree-holder to execute the decree against a person other than such a person as is referred to in Sub-rule (1), Clauses (6) and (c), as being a partner, is a decree within the meaning of Section 2, Sub-clause (2), of the Civil Procedure Code.
2. The plaintiff obtained a decree for Rs. 33,628-11 against the 1928 defendant firm on July 27, 1927, The writ of summons was served on Sejpal, one of the partners in the defendant firm. Being desirous of executing the decree against the other partners including the applicant Doongersi Shivji, the plaintiff took out a chamber summons under Order XXI, Rule 50, Civil Procedure Code, and, on September 16, 1927, obtained an order granting leave to execute the decree against them. A copy of the chamber summons was sent by Registered post to Doongersi Shivji at his address in Cutch who, as appears from the affidavit of service, refused to accept it. Thereafter the plaintiff obtained a warrant of arrest against Doonj|erei Shivji who, it was alleged, had come down to Bombay. The order for the issue of a warrant of arrest against Doongersi was made on November 10, 1927.
3. The summons before me is taken out by Doongersi Shivji for vacating the two order made on September 16 and November 10, 1927, respectively,! The applicant swears that a copy of the chamber summons was not tendered to him and it is conceded that the ex part order of September 1927 must be vacated if the application is not barred by limitation.
4. The most important point urged on behalf of the plaintiff in answer to the summons is that the application is barred by the law of limitation under Article 164 of the first schedule to the Indian Limitation Act Article 164 runs as follows:-
5. By a defendant, for an order to set aside a decree passed ex parts; the period limitation provided is thirty days which begins to run from th4 date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree
6. The question then is whether the order under Order XXI Rule 50, granting leave to the decree-holder to execute a decree against any person other than a person as is referred to in Sub-rule (1), Clauses (b) and (c), as being a partner in the firm is a decree. Doongersi ws not served with a summons nor did he appear in the suit and the order complained of was made ex parte under Sub-clause (2) of Order XXI, Rule 50, Civil Procedure Code. If such an order is a decree, then undoubtedly Article 164 would apply and there is no doubt on the affidavits before me that the present application would be barred by limitation as it is made long after the expiration of the period of limitation provided hi Article 164 of the Indian Limitation Act.
7. Under Section 2, Sub-clause (2), of the Civil Procedure Code, a 'decree' is defined as follows:-
'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and was may be either preliminary or final.
8. The definition further goes on to say:
It shall be deemed to include the rejection of a plaint and the determination Vasanji of any question within Article 47 or Article 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.
9. Therefore, to constitute a decision a 'decree' the following conditions must be present:
(1) the decision must have been expressed in a suit;
(2) the decision must have been expressed on the rights of the parties with regard to all or any of the matters in controversy in the suit; and
(3) the decision must be one which conclusively determines those rights.
10. The term 'suit' has not been defined for the purposes of the Code. Under the last Code, Section 647(now 9. 141) was held to show that applications for execution were not suits, but only proceedings in a suit and appeals from orders on applications were dealt with in Section 588(now Section 104 and Order XLIII, Rule 1). Orders passed in execution were expressly provided for under the second clause of the section, the first clause of which referred to suits or appeals only. Under Section 48(now Section 26) of the Code a suit must commence with a plaint and therefore a proceeding under Section 244(now Section 47) though it is a proceeding in a suit is not a suit. See Venkata Chandrappa Nayanivaru v. Venkaiarama Reddi I.L.R.(1898) Mad. 256. The corresponding words in the Code of 1877 were -''suit or other judicial proceeding' which last expression was held to include proceedings in execution. But now execution proceedings are not suits and an order thereon is not a decree unless it determines a question within Section 47 of the Civil Procedure Code. Therefore, Mr. Jinnah is right in contending that the present order is not a decree as it is not made in a suit but was made in the course of the execution proceedings. But it is to be remembered that the definition of a decree includes an order made within Section 47, Civil Procedure Code, and orders under that section are decrees and are appealable under Section 100 of the Code. Is this then an order under Section 47 of the Civil Procedure Code It is important to note that all orders in execution proceedings are not appealable. As regards appeals, orders in execution proceedings may be divided into two classes :
(1) orders under Article 47, and (2) other orders in execution proceeding; these again may be sub-divided into two classes : (i) those which are declared to be appealable under Section 104 of the Civil Procedure Code, and (ii) those which are not so declared and therefore non-appealatye.
11. Order XXI, Rule 50, Sub-clause (8), runs as follows:-
where the liability of any parson has been tried and determined under Sub-rule (2), the order made therefore shall have force same force and be subject to the same conditions as to appeal or otherwise as if it were ft decree.
12. But for the words ' be subject to the same conditions as to appeal or otherwise as if it were a decree' in this Sub-clause I should have had no difficulty in holding that an order under this rule giving leave to a decree-holder to issue execution against a person on the ground that he is a partner is an order under Section 47 of the Code inasmuch as if is an order which determines the liability of that person to satisfy the decree on the ground of his being a partner within the meaning of Section 47 of the Code. But my duty is to consider the plain meaning of the words used in the rule itself. If it was the intention of the legislature to make an order made under Order XXI, Rule 50, Sub-clause (2), to be an order within Section 47, Civil Procedure Code, it was not necessary at all to use the words which are used in Sub-clause (3) of that rule to which I have already referred. These words give no power to turn the order in to a decree. They give to the order the status as a decree for the purpose of appeal and of enforcement, but leave it what it was before, namely, an order.I. therefore, hold that an order granting leave to execute a decree against any person on the gr4und that he is a partner, made under Order XXI, Rule 50, Sub-caluses (2) and (3) is not a decree; and therefore Article 164 would not apply and the present application is not barred by the law of limitation, I haves come to this conclusion not without considerable hesitation, and, as similar questions are likely to arise in future particularly in a city like Bombay, 1 would he glad if an attempt is made to obtain an opinion of the Appeal Court on the point.
13. It is agreed between the parties that if my judgment went against the plaintiff on the question of limitation the orders should be vacated and an issue as to the liability of Doongersi as a partner in the defendant firm should be tried.