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Sital Prasad Vs. Pearey Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All701a
AppellantSital Prasad
RespondentPearey Lal and ors.
Excerpt:
- - 2. under order 21, rule 50 where a decree has been passed against a firm, execution may be granted against the property of the partnership or against any person who has appeared in his own name under rule 6 or rule 7,0. 30 or who has admitted on the pleadings or has been adjudged to be a partner as well as against any person who has been individually served as a partner with a summons and has failed to appear......from an order dated 19th december 1929, passed by the munsif of meerut refusing permission to sital prasad to file a written statement. the suit was brought by the plaintiffs against the firm of upper india trading company through its proprietor mahabir prasad and another defendant. mahabir prasad filed a written statement on behalf of the firm pleading inter alia that there was another partner of the firm. at a late stage in the case sital prasad appeared claiming to be one of the partners of the firm and applying for permission to file a written statement. his application was resisted by the plaintiffs and has been dismissed.2. under order 21, rule 50 where a decree has been passed against a firm, execution may be granted against the property of the partnership or against any.....
Judgment:

Sulaiman, J.

1. This is an application in revision from an order dated 19th December 1929, passed by the Munsif of Meerut refusing permission to Sital Prasad to file a written statement. The suit was brought by the plaintiffs against the firm of Upper India Trading Company through its proprietor Mahabir Prasad and another defendant. Mahabir Prasad filed a written statement on behalf of the firm pleading inter alia that there was another partner of the firm. At a late stage in the case Sital Prasad appeared claiming to be one of the partners of the firm and applying for permission to file a written statement. His application was resisted by the plaintiffs and has been dismissed.

2. Under Order 21, Rule 50 where a decree has been passed against a firm, execution may be granted against the property of the partnership or against any person who has appeared in his own name under Rule 6 or Rule 7,0. 30 or who has admitted on the pleadings or has been adjudged to be a partner as well as against any person who has been individually served as a partner with a summons and has failed to appear. If therefore a decree is allowed to be passed against the firm the partners of it would be handicapped when the time for its execution arrives and they would hardly have any defence to resist its execution against the property of the partnership. An ordinary firm is not a registered corporation, but is merely a partnership which under Order 30 is allowed to be sued in the name of the firm under which business is carried on.

3. But the real defendants are partners in the firm who are the owners in common of its assets and are liable for its debts. Rule 6 of that order provides that when the partners are sued as partners in the name of the firm they shall appear individually in their own names, but that the suit shall nevertheless be continued in the name of the firm. This obviously implies the right of any partner who has been sued against to appear in the case. If any partner considers that his rights will not be adequately represented by the other partner who has been impleaded or that his interest is adverse to that of the other partner, it is only just and fair that he should be allowed to appear individually and resist the claim. In the present case the plea put forward by Sital Prasad is to the effect that the debt sued upon is not one due from the firm at all but from Mahabir Prasad personally and that therefore the firm is not liable. Mahabir Prasad cannot adequately represent Sital Prasad in such a controversy. If Sital Prasad is deprived of the right to defend the claim he would find himself in a helpless position when the time for the execution of the decree comes, and it seems to be against natural justice that Sital Prasad should be prevented from filing the written statement at this stage and yet be held bound by the decree which may be passed against the firm behind his back.

4. A preliminary objection is taken on behalf of the respondent that no revision lies from this interlocutory order and that therefore this Court has no jurisdiction to set the matter right. The word 'case' occurring in Section 115 has not been defined anywhere in the Code, and all that the recent Full Bench has laid down is that no revision lies from the order determining one of the several issues arising in the case while the suit is still pending. So far as Sital Prasad is concerned the Court has come to a final finding as against him and his right to file a written statement has been taken away. So far as he is concerned he is out of Court and the proceeding initiated by him has come to an end. He has no right of appeal from the order nor would he have a right of appeal from the decree which will ultimately be passed against the firm, as he will be no party to it. Much less would it be of any advantage to him when he has not been allowed to produce any evidence to substantiate his plea. I would therefore think that this is a case decided against Sital Prasad within the meaning of Section 115, Civil P. C, and is not a mere adjudication on an issue in a case while the suit is still pending against him.

5. Even if there were any doubt as regards the applicability of Section 115, I think this Court should interfere in exercise of its power of superintendence under Section 107, Government of India Act, because the order of the Court below is against natural justice, I accordingly allow this application in revision and setting aside the order of the Court below direct that Sital Prasad should be given art opportunity to appear individually in his own name and file a written statement. The applicant will have his costs of this revision from the respondents.


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