1. The appellants obtained a decree for rent in O.S. No. 200/21 on the file of the District Munsif, Madura Town, against the firm of Rathilal Somabhai & Co. represented by its agent Ramsooke Das. They now seek leave to execute that decree against two persons, Somabhai Purushotham and Rathilal Purushotham on the ground that they were partners of the firm. For that purpose the appellants filed an application under Order 21, Rule 50, Clause 2, Civil P.C. Both the lower Courts dismissed it on the ground that it was barred by limitation, having been made more than three years after the decree. The only question therefore for decision is whether the application is barred by limitation. The appellant contends that Article 182, Lim. Act, governs applications of this kind, whereas the respondent says that it is Article 181 that should be applied. The lower Courts relied on the decision in Vishinji Goverdhandas v. Vassumal Wadhaumal 1930 Sind. 180, in which it was held, that Article 181 applied. But a Bench of the Bombay High Court had since to consider the same question in Bhagwan Manaji v. Hiraji Premajee 1932 Bom. 516. Patkar, J., in delivering the leading judgment in that case observed:
Under Order 21, Rule 50, it is permissible for the partners who were not served in the suit to dispute their liability on any valid ground, but the application for execution would be governed by Article 182, Lim. Act. The application under Order 21, Rule 50, Clause 2 for leave to execute the decree against the partners who were not served is merely an ancillary application in the application for execution, and unless leave is granted, the decree does not become an executable decree personally against the partners who were not served. So long as the decree is alive, an application can be made under Order 21, Rule 50, for leave to execute the decree against the partners who were not served in the suit. Such an application for execution in which an application is also made under Order 21, Rule 50, Clause 2 for leave to execute the decree against the partners who were not personally served in the suit, is in my opinion, not barred so long as the decree against the firm is alive.
2. I am inclined to agree with the view expressed above. I do not think that the fact that this application is not framed as one for execution, but as one for determining the liability of the partners who were not served in the suit, makes any difference, for the application is really one contemplated by Order 21, Rule 50, Clause 2. It is conceded that if Article 182 governs the case, this application is not barred. I therefore hold, differing from the lower Courts, that the application is not barred by limitation. This appeal is therefore allowed, and the order of the lower Courts are set aside and the petition is remanded to the trial Court for disposal according to law. The contesting respondents will pay the costs of the appellant in this appeal. The other costs will follow and abide the result.