B.K. Mukherjea, J.
1. The facts giving rise to this appeal may be shortly stated as follows. The respondent before us which is a firm carrying on business under the name and style of late Iswar Chandra Pal obtained a money decree in the original side of this Court against another firm known as late Ram Krishna Pal and late Kali Krishna Pal for a sum of Rs. 18,456 annas odd on 6th March 1931. In the beginning of 1943, the decree was transferred for execution to the Court of the Fourth Subordinate Judge at Dacca, and the application for execution was filed by the decree-holder in that Court on 12th February 1943. In this petition, the decree-holder prayed for realisation of the decretal amount by attachment and sale of certain moveable properties belonging to the present appellants who were made parties to the execution proceeding as judgment debtors Nos. 2 to 6 on the allegation that they were partners of the firm against which the decree was obtained.
2. The appellants resisted the application for execution substantially on the ground that the decree could not be executed against them personally without leave of the Court which passed the decree as contemplated by Order 21, Rule 50 (2), Civil P. C., and that it was not within the competence of the Court to which the decree was sent for execution to grant that leave. The learned Subordinate Judge by his order dated 3rd July 1943, dismissed the appellants' petition of objection and directed that the matter would be heard by him under Order 21, Rule 50 (2), Civil P. C. It is against this order that the added judgment-debtors have come up on appeal to this Court. It is not disputed that the decree-holders obtained a decree against the defendant firm in the' firm name and that the present appellants were neither individually served with summons nor did they appear in the suit and certainly did not admit or were adjudged to be partners. As the decree-holder wants to execute the decree not against the partnership property but personally against the appellants who do not come within the purview of cls. (a) and (b) of Order 21, Rule 50 (1), Civil P. C., it admits of no doubt that they can be proceeded against only in the manner contemplated by Order 21, Rule 50 (2) of the Code. The sub-rule stands as follows:
Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in Sub-rule (1), cls. (b) and (c), as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.
3. Two questions which arise for consideration in this appeal are: (1) whether the sub-rule contemplates a separate application for leave which is to be made prior to the presentation of the execution petition itself; and (2) whether the leave under the sub-rule could be granted by a Court which did not pass the decree but received it for execution on transfer by such Court. The first question admits of an easy answer. It is true that the sub-rule speaks of an application for leave 'to the Court which passed the decree,' but it is fairly well settled that it is not necessary that leave under Order 21, Rule 50 (2), Civil P. C., should be asked for in a separate petition before filing an application for execution. It is permissible to make one application combining both the prayers, and it is not even required to ask for leave separately as the application for execution against a particular person necessarily implies such a prayer: vide Jagat Chandra v. Gunny Hajee Ahmed ('26) 13 A.I.R. 1926 Cal. and Jagannath Jugal Kishore v. Chimanlal Chowdhury ('44) 48 C. W. N. 645. This point, therefore, must be decided against the appellants, and we cannot reject the application for execution simply because no separate application with an express prayer for leave under Order 21, Rule 50 (2), Civil P. C., was made.
4. The other point raised in this appeal involves a question of some nicety which, so far as this Court is concerned, is not covered by any previous authority and in regard to which divergent views have been expressed by other High Courts in India. The question is whether the application for leave under Order 21, Rule 50 (2), Civil P. C., is to be made only to the original Court which passed the decree or can such leave be granted by the executing Court to which a decree has been transmitted for execution. The Patna High Court held definitely that the words 'the Court which passed the decree' occurring in Sub-rule (2) referred to the original Court which made the decree and did not include the executing Court, vide Kalu Ram v. Firm Sheonand Rai ('32) 19 A.I.R. 1932 Pat.; and this view was adopted by the Madras High Court in Pottiswami v. Sait Sulaiman ('42) 29 A.I.R. 1942 Mad. On the other hand, a contrary view was taken by the Allahabad High Court in Sital Prosad v. Clement Robson & Co. ('21) 8 A. I. R. 1921 All. where it was held relying on the provision of Section 42, Civil P. C., that the Court executing a decree which has been sent to it for execution is to be regarded for purposes of Order 21, Rule 50 (2) as the Court which passed the decree. This view was followed in a subsequent decision of the same High Court in Sanwal Das v. Collector of Etah ('24) 11 A. I. R. 1924 All. and by the Lahore High Court in Bombay Co. Ltd., Karachi v. Kahan Singh. ('31) 18 A. I. R. 1931 Lah.
5. In our opinion, the view taken by the Patna High Court is right. If we look to the language of the different rules contained in Order 21, Civil P. C., we find that where the provision of Rule 10 applies and the decree-holder has the option of applying either to the Court which passed the decree or the Court to which the decree is sent for execution, the word 'Court' alone has been used in a general way without any further specification, but where the intention of the Legislature is that the application is to be made only to the Court which passed the decree and not to any other Court, that one Court has been specifically referred to. This is the case with regard to the provisions of Order 21, Rule 16 as well as of Rule 50 (2), Civil P. C. So far as Rule 16 is concerned, it has been held in Amar Chandra Banerji v. Guru Prosanna Mukherjee (1900) 27 Cal. 488, that an application for execution by the transferee of a decree under old Section 232, which corresponds to Order 21, Rule 16 of the present Code, can be entertained only by the Court which passed the decree; the Court to which the decree has been transmitted for execution has no jurisdiction to entertain such application. In Order 21, Rule 26, Civil P. C., again a distinction has been drawn clearly between a Court to which a decree has been sent for execution and the Court which originally passed the decree, and this shows that the latter cannot mean or include the former. Section 42, Civil P. C., lays down that the Court executing the decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. This undoubtedly is the general rule, but exceptions have been made by the Legislature itself in special cases where the matter for investigation is considered to be of such a character as could more properly be determined by the original Court which decided the suit.
6. We may agree with Dr. Pal that a decree obtained against a firm in the firm name has the same effect as a decree against all the partners. All the partners, therefore, are bound by the decree irrespective of the fact whether they appeared in the suit or not. The decree, however, is passed in such cases upon service of summons of an extremely technical type as is provided for in O. 30, Rule 3, Civil P. C., and all the existing partners of a firm may not be actually aware either of the institution of the suit or its result. With regard to the persons coming under cls. (b) and (c) of Order 21, Rule 50 (1), Civil P. C., it may be presumed that they were aware of the suit or their liability as partners has been in some way or other established. With regard to persons not coming within the purview of these clauses, the Legislature on grounds of policy deemed it expedient to provide that if they disputed their liability, the matter should be heard and determined as an issue in the suit itself. The determination, though it takes place in execution, is given the force of a new decree and is appealable as such. It is strictly speaking not a matter coming under Section 47, Civil P. C., for unless and until the liability of a person as a partner is established, he cannot be deemed to be a party to the suit. In these circumstances, it seems to us proper to conclude that the Legislature intended that the matter should be investigated by the original Court which made the decree and not by the Court to which the decree is sent for execution. In deciding the case in Sital Prosad v. Clement Robson & Co. ('21) 8 A. I. R. 1921 All., the Allahabad High Court proceeded upon an interpretation of Section 42, Civil P. C., which cannot, in our opinion, be accepted as proper. All that Section 42, Civil P. C., lays down is that the Court executing the decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. This does not mean that a litigant can approach the executing Court for obtaining a particular relief, for which he has been expressly directed to apply to the original Court. The eases in Sanwal Das v. Collector of Etah ('24) 11 A. I. R. 1924 All. and Bombay Co. Ltd., Karachi v. Kahan Singh. ('31) 18 A. I. R. 1931 Lah. simply followed the earlier decision of the Allahabad High Court without any independent discussion or additional reason.
7. It may be pertinent, we think, to refer in this connexion to the decision of the Judicial Committee in Jang Bahadur v. Bank of Upper India Ltd ('28) 15 A. I. R. 1928 P. O. which turned upon the construction of Section 50, Civil P. C. In that case a decree made by the Subordinate Judge of Lucknow was transferred to the Court at Hardoi for execution. While the proceedings were pending before the Hardoi Court the judgment-debtor died, and that Court, on the application of the decree-holder made an order under Section 50, Civil P. C., to the effect that execution would proceed against the legal representative of the deceased judgment, debtor. This order was challenged on behalf of the judgment-debtor as being without jurisdiction on the ground that under Section 50 (1), Civil P. C., the application has to be made to the Court which passed the decree and that Court alone was competent to make the order and not the Court to which the decree was sent for execution. It was held by their Lordships of the Judicial Committee that undoubtedly the Court which passed the decree was the proper Court to make an order that execution of the decree was to proceed against the legal representative of the judgment-debtor, but as the Court to which a decree is sent for execution does not lose jurisdiction over the proceedings even if the judgment-debtor dies before the proceedings come to an end, the matter was one of procedure and not of jurisdiction, and if the executing Court did make an order for substitution, it was an irregularity which could be waived by the judgment-debtor. Their Lordships observed in the course of their judgment that the conflict of judicial opinion on this point was more apparent than real and expressly referred to the observation of Banerjee J. in Amar Chandra Banerji v. Guru Prosanna Mukherjee (1900) 27 Cal. 488. In that case, Banerjee J. pointed out the distinction between Section 234 of the old Code (which corresponds to Section 50 of the present one) and Section 232 (which is reproduced in Order 21, Rule 16 of the present Code). When the judgment-debtor dies pending the execution proceedings, the application for substitution of his heirs should indeed be made to the Court which passed the decree, but that Court has no discretion in the matter and an order for execution must be made. This therefore can be regarded as a matter of form and any irregularity in the proceeding can be cured by Section 99, Civil P. C. The case is different when an application is made by a transferee of a decree under Order 21, Rule 16, Civil P. C., and there the Court has got to determine judicially whether the transferee should be allowed to execute the decree or not. This is not a matter of procedure, and if the Legislature lays down that the application has to be made to the Court which passed the decree, no other Court could possibly exercise jurisdiction.
8. In our opinion, the reasoning applies with full force to an application made by the decree-holder under Order 21, Rule 50 (2), Civil P. C. Here also the Court has got to determine in the same way as it determines an issue in a suit as to whether the person proceeded against is liable as a partner or not. The decree-holder cannot, as a matter of course, have an order for execution against such person, and in such circumstances, it must be held that the jurisdiction to determine particular question has been given by the Legislature to the Court which passed the decree and not to any other Court. The result therefore is that this appeal is allowed. The order of the Court below is set aside. It will be open to the decree-holder to make an application to the proper Court as is contemplated by Order 21, Rule 50 (2), Civil P. C. We make no order as to costs in this Court.
9. I agree.