GAJENDRA NARAIN SINGH Vs. JOHRIMAL PRAHLAD RAI

JUDGEMENT

(1.) M/s. Johri Mal Prahlad Rai-hereinafter referred to as 'the plaintiffs'-commenced an action against M/s. Tirhut Umbrella Works (A firm carrying on business at Laheriasarai in the State of Bihar) in the City Civil Court, Bombay for a decree for Rs. 320/- with costs and interest. Summons of the suit was served upon one Gajendra Narain Singh-hereinafter referred to as 'Singh'-at Road 8, R Block at Patna (Bihar) as a partner of the defendant firm. Mr. D. B. Tilak an advocate who was engaged by Singh filed on April 22, 1953 in Court a Vakalatnama signed by Singh authorising him to act, appear and plead in the suit. A chamber summons for directions for trial of the suit as a commercial cause was thereafter served on Singh. On September 9, 1953 Mr. Tilak as advocate for Singh addressed a letter to the Attorneys of the plaintiffs requesting them to consent to an "adjournment of the x x x x suit" to enable Singh to file his written statement. By consent of the advocates the chambers summons for directions stood adjourned by order of the Court for a fortnght. When the chamber summons for directions was taken up for hearing on September 24, 1953 Mr. Tilak informed the Court that Singh claimed that he was not a partner of the defendant firm, and orally prayed for an order permitting withdrawal of the appearance filed in Court. The Court declined to accede to the oral request and directed that appropriate proceedings to withdraw the appearance may ,if so advised, be taken by Singh . The Court directed that the suit be transferred to the list of commercial causes and gave directions for the progress of the suit. When the suit was taken up for hearing before the City Civil Court on November 27, 1953 Mr. Tilak again appeared and submitted that his client on whom summons was served in the suit, was not a partner of the defendant firm and prayed that he be allowed to withdraw the appearance which was filed without protest. The Court rejected the application for leave to withdraw the appearance and also rejected the application of Mr. Tilak for an adjournment of the suit. Mr. Tilak then withdrew from the suit with leave of the Court, and the suit was heard ex parte. The Court recorded the evidence of a witness for the plaintiff and admitted certain correspondence tendered by the plaintiffs, and decreed the suit as prayed.

(2.) The decree was forwarded by the Registrar of the City Civil Court, Bombay to the Court of the District Judge, Patna, with a certificate of non-satisfaction. The plaintiffs then applied for leave to execute the decree against Singh under O. 21 R. 50 (2) of the Code of Civil Procedure. Singh contended that he was not a partner of the defendant firm and that he was not liable to satisfy the debts of that firm; that he was not served with the summons in the suit; that he had appeared in the suit in which the decree was passed not as a partner, but in his individual capacity; and that he had informed the Court that he was not a partner of the defendant firm. The plaintiffs then applied for execution of the decree claiming that no order of the Court granting leave to execute the decree was necessary. The District Judge, Patna, by his order dated May 12, 1955 held that execution could not be directed against Singh relying upon sub-cl. (b) or (c) of R. 50, O. 21 for the question whether he was a partner of the defendant firm was left undecided by the City Civil Court. The learned District Judge further held on the evidence that Singh was not a partner of the defendant firm.

(3.) In appeal against the order of the District Judge rejecting the application for execution against Singh, the High Court at Patna held that on the facts proved the plaintiffs were entitled as of right to execute the decree under O. 21 R. 50 (1) (b) against Singh. The High Court accordingly reversed the order passed by the District Judge and directed execution to proceed against Singh. With certificate under Art. 133(1)(a) granted by the High Court, this appeal has been preferred by Singh.