1. The appellant was the second defendant in a suit on a promissory note which was decreed without contest. In bar of execution of that decree, he raised the objection that the suit was bad and the decree a nullity because the plaintiffs at the time of the filing of the suit constituted an unregistered partnership. The plaint filed on 27th June, 1935, describes the plaintiffs by their names only and contains no allegation that the claim is made on behalf of the firm or that the promissory note was executed to the firm, nor does it pray for a decree in favour of the firm. But Clause 2-a of the plaint avers that the two plaintiffs are 'joint partners', that the first plaintiff is the managing partner of the firm and that therefore he is signing the plaint on behalf of the second plaintiff also. Thus the fact that the plaintiffs constitute a firm is pleaded merely to show that the first plaintiff has authority to represent the second plaintiff. The plaint is not in other respects drafted as a plaint in a suit filed by a firm. The decree however has altered the cause title and describes the plaintiffs as 'Shobhagmul Sowcar and Ramlal Sowcar by managing partner, first plaintiff' and the same cause title is repeated in the execution petition. The promissory note upon which the suit is brought is dated 15th March, 1933, a date of some importance with reference to the date of the commencement of the Partnership Act.
2. The objection raised by the appellant is briefly that under Section 69 of the Partnership Act no suit could lie by an unregistered firm in respect of a contract and therefore the Court has no jurisdiction to entertain this suit, the decree is a nullity and the executing Court should have refused to execute it. Two questions obviously arise. One is, whether this decree is one passed without jurisdiction and the other is, whether this is a question which the executing Court is entitled to go into. I will deal with the second question first.
3. Undoubtedly, the general rule is that the Court which executes a decree must take it as it stands and cannot entertain ah objection as to its legality or propriety Kalipada Sarkar v. Hari Mohan Dalal I.L.R.(1916) 44 Cal. 627. This general rule is subject to exceptions; but it has been generally recognised by the Courts that exceptions to the rule should be restricted to certain categories which have been recognised by the Courts and that the Courts should be very chary of recognising fresh exceptions. Certain exceptions are widely recognised. It has always been recognised by this High Court that an executing Court can refuse to execute a decree if it is one apparently passed without jurisdiction. Even this exception has not been recognised everywhere vide Nathan v. Samson I.L.R. (1931) 9 Rang. 480 , but it certainly holds force so far as Madras is concerned. If, therefore, on the face of the decree, it can be seen that the Court which passed the decree had no jurisdiction, or if there are apparent reasons for doubting its jurisdiction to pass that decree, the executing Court can go into the question whether or not the decree is a nullity. The extent to which the executing Court can go into the validity of a decree, which is not on its face one passed without jurisdiction, is very limited.
4. One class of cases has been recognised by this High Court, namely, cases in which the executing Court contemplates a sale of property which, by a provision in law enacted for the benefit of the public generally, is inalienable. Cases under this class relate, generally, to sales in violation of the provisions of the Madras Impartible Estates Act or sales in violation of Act lit of 1895 governing service inams. It may, however, be doubted, whether this class of cases is really an exception to the general rule; for the grounds of the executing Court's enquiry into the executability of the decree are not really grounds relating merely to the decree itself, but rather to the power of the Court to effect the alienation which the execution contemplates. That is to say, the basis of the executing Court's right to go into the nature of the decree is really not the illegality of the decree, but the Court's own legal duly not to carry out an alienation which offends against a prohibition laid down for public reasons by statute. In other words, it is not really a power to question the decree, but a power residing in the executing Court to make sure that its own act is not illegal. I therefore venture to doubt whether this class of cases is really an exception to the general rule that the Court should not go behind the decree except on grounds of apparent lack of jurisdiction.
5. A further class of cases relates to decrees against persons under a disability who are alleged not to have been properly represented. There is a difference of opinion in the various Courts on the question whether an executing Court can go into the validity of the decree on these grounds. It is not necessary for me to go into the question for the purpose of the present case.
6. A further possible exception relates to decrees against dead men. Here again, it is by no means universally acknowledged that an executing Court can go into the question whether the decree was passed against a person already dead. But even if the power of the executing Court to make such an enquiry be recognised, it is again perhaps not so much an enquiry into the validity of the decree, as an enquiry into the existence of any properties against which a decree can be executed. For, if the defendant was dead at the time when the decree was pissed, his properties would have already passed to his heirs and all that would remain against which the decree could be executed would be the person of a man already defunct. Looked at from that angle, it is not really an exception to the rule that the executing Court cannot go into the validity of the decree apparently passed with jurisdiction.
7. An attempt has been made to argue in the present case that there is a prohibition against the passing of decrees in favour of unregistered partnerships - a matter which seems to me rather doubtful, for all we find in Section 69 is a prohibition against the filing of suits by unregistered partnerships. It has, however, been argued that from the terms of Sub-clause 4-b of Section 69, one might infer a general prohibition against the entertainment of execution proceedings by unregistered partnerships. This seems to me to be to deduce far too much out of the special provision relating to Small Causes Court proceedings.
8. Now this decree, on its face, is not one apparently passed without jurisdiction. Certainly on its face, it appears to be a decree in favour of the partnership, though, as I have already indicated, no such decree was expressly prayed for. But there is nothing on the face of the decree to show that the partnership was unregistered. True that in the counter-affidavit to the execution petition, it was contended that the partnership was unregistered and, no reply having been given and there being no evidence to the contrary, one may infer that this contention was correct. But the fact remains that the decree was not one apparently passed without jurisdiction. I doubt also whether it can be said that a Court has no jurisdiction to pass a decree in favour of an unregistered partnership. The most that can be said is that, in certain circumstances, a suit by an unregistered partnership is liable to be rejected, in limine. The circumstances are (a) that the partnership in question is not a partnership of the non-contractual kind constituted by a Hindu joint family (vide Section 5 of the Act); (b) that the proceeding in question is not one saved by the special provisions of Section 74 of the Act.
9. Now in the present case, it appears that the two plaintiffs are Hindus closely related to one another.
10. The learned District Judge has inferred that in all probability they do not constitute a joint family firm. But the matter not having been put into issue in the suit, it cannot, in my opinion, be said that the contention based on Section 5 would not have been open to the plaintiffs had the objection been taken, as it should have been taken, at the time of the trial. Further, the debt with which we are concerned is a promissory note dated 15th March, 1933, said to be in respect of a family debt, the origin of which we do not know. The Partnership Act is peculiar in that the commencement of the Act for the purpose of Section 69 is a year later than the commencement for the purpose of the rest of the Act. The Act generally came into force on 1st October, 1932. Section 69 came into force on 1st October, 1933. It is, I think, settled so far as Madras is concerned, and also in Rangoon, that a suit instituted after 1st October, 1933, by an unregistered firm in respect of a debt arising before the commencement of the Act is one to which Section 69 does not apply. The terms of Section 74 (b) exclude from the operation of the Act any legal proceeding or remedy accruing before the commencement of the Act in respect of any right, obligation or liability which, with reference to Sub-clause (a), was 'acquired, accrued or incurred before the commencement of the Act.' Now it has been held that the remedy which accrues before the commencement of the Act is one which accrues before the date on which Section 69 comes into force, Soonoiram v. Junjilal A.I.R. 1938 Rang. 273 and Girdharilal Son & Co. v. Kappini Gowder : AIR1938Mad688 . It is to my mind difficult to postulate a different date for the commencement of the Act when dealing with the liability in respect of which the remedy arises; for, if a man had a right on the 30th September, 1933, to bring a suit in respect of a debt incurred after the 1st October, 1932, one would naturally infer that that remedy would be protected by the terms of Section 74, Clause (b), the object of which, apparently, is to give the Government time to frame the necessary rules and to give the parties time to carry out the necessary formalities.
11. I am, therefore, inclined to the view that the suit out of which this decree arose is not one barred under Section 69 of the Partnership Act. Whether that view be correct or not, it seems to me clear that any lack of jurisdiction - if lack of jurisdiction be the proper term - which may have existed in the Court which passed this decree, could only be ascertained with an amount of research and investigation which would be beyond the functions of an executing Court. The executing Court had an apparently good decree to execute and it is not, in my opinion, entitled to go into an elaborate enquiry into the legality of that decree, an enquiry which demands the adducing of evidence which was not put before the trial Court before which the objection should have been raised.
12. In the result, therefore, I hold that the decision of the District Judge is correct and I dismiss the appeal with costs.
13. Leave refused.