T P KUPPUSWAMI MUDALIAR Vs. POLITE PICTURES

JUDGEMENT

(1.) This is an appeal against an. order of Ramaswami J. granting leave under Order 21, Rule 50(2), C. P. C., to execute the decree obtained in C. S. No. 812 of 1948 on the file of this Court against a firm by name Sri Murugan Films against the appellant here on the allegation that he was a partner in the said firm.

(2.) The suit out of which this proceeding arises was instituted by a registered firm by name "The polite Pictures" against a firm carrying on business in the name of Sri Murugan Films and two others. The plaintiff-firm obtained rights to exhibit a film by name Thulasi Jalandar in the City of Madras, whereas the Murugan Films obtained distribution rights in respect of the same film in the District of Chingleput. The plaintiff-firm alleged that contrary to the terms of the lease deed in favour of the defendant, they had unlawfully exhibited the picture within the City of Madras and thus Infringed their rights. In the cause-title to the plaint the first defendant was described as Sri Murugan Films a film carrying on business at Ambur. The summons in the Suit was served upon one M.J. Vittal Rao who, it is admitted, was the managing partner of the first defendant firm. In the summons, however, taken out to this Vittal Rao, the description given of the person on whom service was to be effected was "Sri Murugan films by sole proprietor M. G. Vittal Rao." On receipt of this summons, Vittal Rao appeared through counsel Mr. T.L. Venkatarama Aiyar then at the Bar. In the vakalat executed la favour of the counsel Vittal Rao described himself as the managing partner of the Sri Murugan Films. He filed a written statement contesting the claim of the plaintiff and putting forward a defence that Aminjikarai where it was stated that the defendant had exhibited the film in contravention of the plaintiff's rights was oh the date of the agreement within the District of Chingleput and that, therefore, the defendant firm had a right to exhibit the picture in the Theatres in the locality. This defence was the subject-matter of issue before the Court and Ramaswami Goundar J. after consideration of the relevant notifications by Government reached the conclusion that Aminjikarai was not in the District of Chingleput on the date of the agreement. The result of this finding was that the defendant firm had been proved to have infringed the plaintiff's rights and the only question for consideration by the Court was the quantum of damages payable to the plain tiffs ' for the infraction of their rights. The learned Judge held that the plaintiffs were en titled to have a decree passed in their favour for 1 3/4 times, i.e., 175 per cent, of the net profits made by them from the. exhibition of the film in two theatres within this area. This being taken to represent the actual loss sustained by them. The matter was, thereupon sent to the Official Referee for the ascertainment of the profits made by the defendant-firm. The defendant filed their accounts from which the net profit which they derived and on the basis of which the damages payable to the plaintiff were to be calculated could be ascertained. The accounts produced by the defendants' firm were accepted by the plaintiffs and the only question was as regards certain deductions claimed by the defendant for computing the net profits. The learned Official Referee decided the items which were allowable and on this basis, directed the counsel to work out the figure of net profit derived by the defendant-firm. Counsel Submitted a figure and on the basis of this amount due to the plaintiff was ascertained. This was placed before the Court and a final decree was passed in favour of the plaintiff for a sum of Rs. 3074-5-6 in the place of Rs. 29000 for which the suit had been laid. This final decree was passed in August 1952.

(3.) In pursuance of this decree the plaintiff firm applied to execute this decree against the present appellant as being one of the" partners of the defendant-firm and as against whom therefore the decree could be executed after obtaining leave of the Court under Order 21, Rule 50, C. P. C. On receipt of the Master's summons in this application, the present appellant without denying that he was a partner of the Sri Murugan Films raised three contentions. The first was that he was not served with summons of the suit C. S. No. 812 of 1948 of the High Court, Madras, the decree in which was sought to be executed against him personally. He said that the decree was obtained after service upon Vittal Rao who was described as the sole proprietor of the first defendant firm. On this ground it was stated that the decree obtained against Sri Murugan Films could not be executed against the appellant personally. The second ground that was urged was that the decree in C. S. No. 812 of 1948 was a consent decree and that under the Partnership Act which governed the rights of the parties of the defendants' firm Vittal Rao had no authority to con-Bent to a decree being passed against the firm in the face of the statutory provision enacted in Section 19(c). Partnership Act. The third objection to the leave being granted was that the firm of Sri Murugan Films had been dissolved and that final decree proceedings in the suit for dissolution, O. S. No. 155 of 1951 on the file of the District Munsif's Court, Tirupattur were pending.