1. This is a civil revision from an order passed by the District Judge of Jhansi allowing an appeal in an execution matter and disallowing the judgment-debtor's objection.
2. The first point raised is that no appeal lay to the District Judge. This contention, in my opinion, has no force whatsoever. It is not disputed that the decree has been transferred for execution from the Bombay High Court to the Court at Jhansi. This was presumably under Section 39, Civil P.C. An order passed by the Subordinate Judge in execution is not an order passed by a Court of Small Causes from which no appeal lies. A first appeal from his order clearly lay to the District Judge: vide the case of Atwari v. Maiku (1909) 31 All 1. Of course the decree having been passed by a Presidency Court of Small Causes in a case of Small Cause Court nature no second appeal lies even in the execution proceedings.
3. The next point urged is that the learned Judge has acted upon evidence which was neither formally proved nor admissible in evidence. The objection of the respondent is that assuming that this contention is correct no civil revision lies. Ordinarily when a Court acts on evidence which has not been proved or which is inadmissible in evidence, it does not act without jurisdiction. Furthermore, if a Court considers the question of the admissibility of a document and decides either that it is admissible or not admissible then even though the decision may be wrong, the Court does not act with material irregularity or illegality. It merely commits an error of law. But on the other hand if the Court does not apply its mind to the question of the admissibility at all and acts on a document which has not been proved or which is not admissible without considering whether or not it is admissible it acts with material irregularity or illegality in exercising its jurisdiction. In the case of Shields v. Wilkinson (1887) 9 All 398 it was laid down that to pass a decree where there was no evidence at all to support it was an illegality. I may also refer to the case of Chenbasapa v. Lakshman Ramchandra (1894) 18 Bom 369.
4. In the present case the learned Subordinate Judge had found that on the date when the original suit was instituted the sole proprietor Rahim Bakhsh was dead. He further found that the concern which Rahim Bakhsh was carrying on ceased to exist at his death and that the heirs did not continue the old concern but started new concerns of their own though they adopted the same fictitious name (S. Johnson & Co.) which their father had assumed. He accordingly held that the decree obtained against Johnson & Co., was a decree against a dead person and was a nullity.
5. The learned Judge apparently felt the same difficulty as to the identity of the judgment-debtors but he considered that difficulty was removed by a letter dated 3rd August 1922. The learned Judge commented on the omission of the First Court in neither admitting nor rejecting nor referring to it in its judgment. This apparently is the sole evidence in support of the identity of the judgment-debtors. The letter in question was not admitted by the judgment-debtor's nor was it marked as an exhibit by the Court of first instance. No witness was produced in Court to prove its genuineness. When the appellant Habib Bakhsh was being cross-examined this letter was not put to him and he was not questioned about it all. The letter had been originally filed along with an affidavit dated 11th June 1924 but the entire statement in the affidavit with regard to this letter was that it was the original received from the firm against which we seek to execute the decree.'
6. Now, ordinarily documents are not proved by mere ex parte affidavits when the person trying to prove them does not submit himself to cross examination. Of course under special circumstances affidavits under Order 19 may be allowed to be read in evidence but even then if the opposite party bona fide desires the attendance of the witness for cross examination he has to appear. But under Rule 3 affidavits have to be confined to such facts as the deponent is able of his own knowledge to prove. The affidavit in question did not even state that the statements made therein were true according to the personal knowledge of the deponent, in fact the affidavit is not in strict accordance with the rules added by this Court to Order 19. The letter accordingly had not been formally proved.
7. It is also doubtful how far the mere proof that such a letter was received by the addressee justifies a presumption that it is genuine. When a letter is duly posted there may be a presumption that it reaches the addressee in the ordinary course of business. But the mare fact that a letter has been received through post raises no presumption that it was despatched by the person on whose behalf it purports to have been written. If however it were proved that a previous letter was sent by the decree-holders' firm through post to the judgment-debtor and a reply thereto was duly received by the firm through post purporting to come from judgment-debtor the Court may under certain circumstances presume that it was a reply despatched on behalf of the judgment-debtor though not necessarily in his own handwriting. But here unfortunately the affidavit did not even mention that this letter was received in reply to any previous letter sent, to the defendant firm.
8. I am therefore, of opinion that there has been a material irregularity in the exercise of the jurisdiction inasmuch as the learned Judge without considering the question of admissibility has acted on his letter which had not been formally proved and which without further evidence would not have bean admissible as a written acknowledgment of the judgment-debtors. If the learned Judge were satisfied that in consequence of some misunderstanding or otherwise there was sufficient cause for allowing fresh evidence to be produced he would have perfect jurisdiction to so order.
9. As I have to send the case back it is desirable to clear up one more point about which there may be some misapprehension. When the sole proprietor of a firm dies his heirs certainly inherit the stock-in-trade the outstanding dues and even the goodwill but such heirs do not 0 facto become partners of the firm. When there was a sole proprietor there was no question of a partnership which must be between more than one person. On the death of the sole proprietor his heirs do not automatically become partners of the old firm but merely heirs to the assets of the deceased. Before a partnership can come into existence there must be an express or implied agreement between the heirs that the old firm should be continued. This agreement might be inferred from the fact that the firm was allowed to carry on business even after the death of the sole proprietor. But in the absence of any such evidence it would not be just to presume that the heirs of the deceased proprietor became partners of the new firm. Unless after the death of the sole proprietor the firm carries on business which justifies, a presumption that his heirs are its partners, a suit cannot be instituted under Order 30, Rule 10, in the old name of the firm. That rule will only apply when business is being carried on at the time when the suit is instituted. If business is not being carried on in that name at the time of the suit and the business has ceased to exist then all persons who are interested in the assets ought to be impleaded.
10. I accordingly allow this revision and setting aside the order of the lower appellate Court send the case back to that Court for disposal according to law, Costs will abide the event.