1. The petitioner here is alleged by the respondent to be a partner in the firm of Pottiswami and Brothers against whom the respondent has a decree granted by the Court of Small Causes at Khurai. The decree has been transferred for execution to the Subordinate Judge's Court of Bezwada, which Court has held that it has jurisdiction to decide the question of petitioner's liability under Order 21, Rule 50 (2). Petitioner questions the correctness of that decision.
2. If Rule 50 (2) alone be referred to, the decision appears to be obviously wrong. The sub-rule says that the decree-holder must apply to the Court which passed the decree. This must always be distinguishable in the nature of things from the Court to which the decree has been sent for execution and is so distinguished in fact in both Section 42 and in Order 21, Rule 10.
3. The scope of Order 21, appears to be that where Rule 10 applies the' word 'Court' alone is used. Where as in Rule 16, Rule 26 'or Rule 50 it is intended that the application should be restricted to one Court that one Court is specifically referred to. The learned Subordinate Judge relied however, upon Sital Prasad v. Clement Robson and Company I.L.R. (1921) All. 394. In that decision, which has been accepted without any independent discussion in Sanwal Das v. The Collector of Etah I.L.R. (1924) All. 560, and Bombay Company Ltd., Karachi V. Kahan Singh (1931) I.L.R. 13 Lah. 327, stress is laid upon the overriding provisions of Section 42, which it is said, was intended to remove all questions arising out of the decree from the cognizance of the Court which passed it and had transferred it.
4. This decision has however been dissented from in Kalu Ram v. Firm Sheonand Rai Jokhi Ram I.L.R. (1932) Pat. 580. There the learned Judges pointed out that Order 21, Rule 50 (2) contemplates what is in effect the trial of a suit in which the person against whom execution is sought may contest not only his own liability as partner of the judgment-debtor firm, but the plaintiff's claim upon its merits.
5. There being no authority in Madras I am free to choose either of these conflicting views. With great respect it seems to me that the Patna view is preferable. It not only gives the words 'Court which passed the decree' their plain and literal meaning but it explains why a particular kind of adjudication is limited to the Court which passed the decree from a consideration not of some other part of the Code only, but of the words of the sub-rule itself. I accordingly allow this petition, and direct that the respondent's application to the Subordinate Judge of Bezwada under Order 21, Rule 50 (2) be dismissed with costs throughout. His remedy must be to apply to the Court at Khurai.