B.B. Ghose, J.
1. This is an. appeal by the judgment-debtors who claimed to be the representatives of one Dinabandhu Pal against an order of the Subordinate Judge refusing their application to the effect that a decree obtained by the defendant-firm cannot be executed against certain properties which were being sought to be sold in execution of the decree. The decree was obtained by the respondent-firm against a firm named Bonamali-Dinabandhu Pal. Certain properties were attached before judgment and the decree-holders now seek to enforce their decree by the sale of those properties. The firm of Bonamali-Dinabandhu Pal carried on business as dealers in piece goods at Dhamari Bazar in the district of Dacca. The objections raised by the appellants in the Courts below were twofold. The first was that the firm of Bonamali-Dinabandhu Pal was a one-man firm the owner of which was Dinabandhu Pal alone. When the suit was pending in the High Court, Dinabandhu died and a decree was made against the firm Bonamali-Dinabandhu Pal after the death of the sole proprietor of the firm Dinabandhu Pal. The decree made by the High Court was, therefore, void. Although it purported to be a decree against the firm, it was really a decree against Dinabandhu Pal deceased and as no decree could have been passed against the dead man, the decree is void as having been made without substituting his heirs and it cannot, therefore, be executed. The second objection was that the properties against which execution is sought to be levied were not properties belonging to the firm and, therefore, execution cannot proceed as against those. The learned Subordinate Judge has rejected both the objections raised by the appellants before him. He had the plaint in the suit filed in the High Court before him and he held that the decree was against the firm of Bonamali-Dinabandhu Pal. As an executing Court he could not he behind the decree and he relied for that proposition on the case of Gorachand Haldar v. Profulla Kumar Roy : AIR1925Cal907 . With regard to the second point he was of opinion that under Order 21, Rule 50, the plaintiff firm is entitled to execute their decree against the properties which were attached before judgment during the lifetime of Dinabandhu Pal who raised no objection whatsoever to the attachment whether these properties were of the defendant firm or the personal properties of Dinabandhu Pal.
2. The learned advocate for the appellants contends that the appellants are entitled to succeed in their appeal on either of the two grounds. The first ground that he urged was that the decree was void as having bean passed against a dead man. It is hardly necessary to repeat that the rule allowing a person to sue a firm in the name of the firm is only a short way of describing the defendants. The suit is really brought against the members of the firm. There are certain other provisions in Order 30, Civil P.C., relieving the plaintiffs from taking certain steps with regard to service of notice or the substitution of the heirs of a partner if he happens to die during the pendency of the suit. The relevant rule that we need refer to at present is Rule (4), Order 30. That rule, however, applies in terms where the members of a firm consist of two or more persons. The question is what rule should apply if a firm consists of only one person, or in other words, if one person carries on business in the name or style other than his own name. This is covered by Rule 10, Order 30 which provides that
any parson carrying on business in a name or style other than his own name, may he sued in such name or style as if it were a firm-name; and so far as the nature of the case will permit, all rules under this order shall apply.
3. The question is what would happen if a person carrying on business in the name of a firm dies during the pendency of the suit. It cannot be disputed that if a man dies before any suit is instituted against him, the suit would be in fructuous as having been brought against the dead man who used to carry on business under an alias. As I understand it, the position of a person carrying on business in a firm name is only that of a person who has got an alias and a plaintiff desiring to sue him can sue him in his other name. If during the continuance of the suit that person dies, it is necessary, in my opinion, to bring his legal representatives on the record to have a proper decree made in the suit. If the plaintiff fails to do so, then the decree is made against a dead man, having a different name from his own proper name, and in that case the decree would be an absolute nullity. The point raised in this case is free from authority and Dr. Sen Gupta says that after his research he has not been able to find any case actually governing the position. It appears, however, that there is a cognate rule under the Rules of the Supreme Court in England which is Order 48-A, Rule 11. No decided case has been cited in the last edition of the Annual Practice of 1929 on the question as to what would happen on the death of a person carrying on business in a firm-name. The learned Editors give the following note at p. 862:
After the death of a person carrying on business in a name other than his own, no action can be brought against the firm e.g., a firm's debt eo nomine. Proceedings would have to be instituted against the executors.
4. This confirms me in the view already indicated that the suit would be really against the person not in his proper name but in the assumed name or an alias.
5. The learned advocate for the respondent, Mr. Roy Choudhury refers to Rule (4), Order 33 and contends that where on the face of it the decree is against a firm and it was not brought to the notice of the High Court that it was a one man firm then Rule (4) would apply and the1 decree should be considered as a valid decree; and he further contends, as the learned Subordinate Judge appears to have held, that the matter whether the decree is a valid decree or a void decree, having been passed against a dead man, cannot be enquired into by the executing Court under the authority of the Pull Bench case referred to by the Subordinate. Judge. In my judgment, the Full Bench case lays down the exact proposition that where the decree is a nullity on the ground that the Court had no jurisdiction, whether pecuniary or territorial or in, respect of the judgment-debtor's person to make the decree, the executing Court is entitled to refuse to execute the decree on the ground that it was made without jurisdiction. In this case if the parson against whom the decree was made was already dead at the time of the decree it can hardly be said that the Court had any jurisdiction in respect of the defendant's person. In that case the decree would undoubtedly be a decree made without jurisdiction and would be a nullity and, in my opinion, the executing Court can enquire into the question whether the decree would be a nullity or not. In this case, the appellant alleged in the Court below that Dinabandhu had deed during the pendency of the suit in the High Court and that he was the solo proprietor of the firm. The respondents decree-holders, on the other hand, alleged that the firm was not a one man firm but that there were two partners, Dinabandhu and his brother Jagabandhu Pal. If the fact is established that the firm Bonamali-Dinabandhu Pal consisted of two or more members, then it cannot be disputed that Order 30, Rule 4, will come to the assistance of the plaintiff firm, assuming that Dinabandhu died during the pendency of the suit before the decree. This question, however, has not been investigated by the learned Subordinate Judge. Before the matter can finally be decided, this question should be gone into and as the respondent did not admit that Dinabandhu actually died before the decree was made, that question will also be enquired into.
6. The next contention that is raised on behalf of the appellants that these properties were the personal properties of Dinabandhu and not the assets of the firm really contradicts the first point that has been raised by Dr. Sen Gupta, because if it is a one man firm, the creditors may proceed against the properties whether it was personal property or the firm's property.
7. There is, however, another point on which the appellants must fail with regard to this claim of theirs. The properties against which the decree-holders want to proceed in execution were attached before judgment when Dinabandhu Pal was admittedly alive. He never raised any objection that the property could not be attached for the debt of the firm. What Dr. Sen Gupta seems to urge was that there were documents which showed that these properties were purchased by some ancestor of Dinabandhu and, therefore, were Snob the assets of the firm. Even assuming that the properties were so purchased, there can hardly be any question that Dinabandhu treated them as the assets of the firm and that the properties became the assets of the firm by reason of the fact that he did not raise any objection to these properties being liable for the debts of the plaintiff firm. The appellants who appeared as legal representatives of Dinabandhu can lhardly raise this question against the decree-holders proceeding in execution against these properties.
8. It is necessary to mention one other point. It was argued by the respondent that the present question does not fall within Section 47 of the Code. His contention was that the appellants did not come as legal representatives of the firm of Bonamali-Dinabandhu Pal but that they came as legal representatives of Dinabandhu Pal alone. That point is well answered by the appellants by saying that although the suit was in the firm name of Bonamali-Dinabandhu Pal, it was really against Dinabandhu Pal by his second name and, as a matter of fact, they came before the Court as legal representatives of Dinabandhu Pal and, therefore, they could raise this question under Section 47.
9. The result is that the order of the Subordinate Judge is set aside and the case sent back to him for taking evidence on both sides on the question as to whether the firm of Bonamali-Dinabandhu Pal had two or more partners at the time when the suit of the plaintiff firm was brought against it and secondly, whether Dinabandhu Pal died after the suit and before the decree made by the High Court. The lower Court will then proceed with the matter as indicated after coming to findings on the points stated above.
10. Costs in this appeal will abide the result the hearing fee being assessed at five gold mohurs.
S.K. Ghose, J.
11. I agree