1. This is a suit instituted to recover a sum of Rs. 8,000 and odd from the defendants. The plaintiff and the father of the defendants were partners in a firm, at first called R.M.S.L.P.P. and after-wards changed into R.M.S.L.S. This firm carried on business in Soomangai and Kyato. The plaintiff had also a firm of his own at Rangoon.
2. The case of the plaintiff is that his Rangoon firm called R.M.S.L. advanced sums of money on different occasions to the defendants' firm of which he himself is a partner, that the latter firm was dissolved long before the institution of the suit, and on taking accounts as between the plaintiff's firm and the defendants' firm it was found that a balance of Rs. 25,000 and odd was due to the plaintiff's firm. The contract between the plaintiff and the father of the defendants with relation to the partnership was that the plaintiff was to have 3/4th share and the father of the defendants 1/4th share and we may also take it, so far as we can gather from the pleadings, that the plaintiff's share of the liability was 3/4th to. 1/4th of the defendants' father's. The plaintiff sues to recover, not the entire sum of Rs. 25,000 and odd which was found to be due from the R.M.S.L.S. firm to the plaintiff's firm, but 1/4th of that sum on the basis that his liability being to the extent of the 3/4th, the defendants would only be liable for 1/4th of Rs. 25,000 and odd, and that nothing is due to anybody else from the R.M.S.L.S. firm. It is not proved that there are any other debts due from that firm. But we may take it to be proved that there are outstandings in respect of a decree debt due to the R.M.S.L.S. firm and otherwise. The question is whether a suit of this character is maintainable.
3. The plaintiff is practically suing himself and his partner, and he says that for the debt due to himself 3/4th of that liability falls upon him. That is to say, he really seeks to establish a certain liability against the defendants on the basis of accounts. The defendants do not admit that upon the taking of the entire account, the amount doe would be that claimed by the plaintiff. It may be said on behalf of the plaintiff that if there were any other assets due to the R.M.S.L.S. firm, the only difference which it would make would be that the plaintiff will have his share of those assets as well. But that does not by any means conclude the question.
4. We may take it that one partner can use another in certain cases, such as the one which this Court had to deal with in Karri Venkatareddi v. Kollu Narasayya 1 Ind. Cas. 384. There the defendant partner was sued upon a special agreement to hand over certain promissory notes and other documents to the plaintiff In such a suit no question of accounts arose. It was, therefore, held that to entertain a suit of that character could in no any work injustice to the defendant partner. The cases referred to in Thiruvengada Mudaliar v. Sadogopa Mudaliar 7 Ind. Cas. 8 and Sokkanadha Vannimundar v. Sokkanadha Vannimundar 28 M.a 344 are different cases. In these, the suits were to recover a share of a partioularly item of partnership assets after the dissolution of partnership and the decisions lay down the principle and the conditions under which such suits will lie. They have no bearing on the present case.
5. Mr. K.V. Krishnasami Ayyar, the learned Vakil for the appellant, relies very strongly on the provisions of Order XXX, Rule 9 of the Civil Procedure Code, which says this Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common; but no execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution, all such accounts and enquiries may be directed to be taken and made and directions given as may be just.' Now all that can be said is that this rule contemplates the possibility of suits between a firm and one or more of the partners therein and suits between firms having one or more partners in common. But it does not profess to lay down when, and under what circumstances, such suits would be entertained, and it would not ordinarily be within the scope of the Civil Procedure Code to lay down any such proposition. The rule in question only lays down that if such suits are entertained, the procedure to be followed is that set out in the Order.
6. On the other hand, we have been referred to at least two cases which seem directly to bear on the point, Kashinath Kedari Ganesh 4 Bom. L.R. 525 and Chunder Sikhur Biswas v. Ram Buksh Chetlungee 1 C.L.R. 545. The facts of those cases are very similar to the present case, and it was held that such suits would not lie.
7. We must, however, say that we do not understand the reasons given by the Subordinate Judge in support of his view on this question. He says that it is shown by the evidence that there are some assets belonging to the firm and, therefore, the suit ought to have been instituted against the assets. We do not understand what the learned Subordinate Judge means. He could have been right if he had held that a suit like this could not be entertained as the plaintiff has not asked for accounts. But there is no meaning in his saying that the suit ought to have been 'against the assets'. He also decided against the plaintiff on other grounds, namely, that certain entries in books of accounts filed by him had not been proved; and, even if proved, they would not be sufficient in law to support his case. It is unnecessary, in view of what we have expressed as regards the maintainability of the suit, to pronounce any opinion on that question. We dismiss the appeal with costs.