PANNAJI DEVICHAND Vs. LAKKAJI DOLAJI

JUDGEMENT

(1.) THIS revisional application arises in a dispute between two rival decree-holders for rateable distribution of certain assets realised in execution. The petitioners obtained a decree against the firm of Kapurji Magniram by its proprietor and vahivatdar Sogaji Ammaji Marwadi, and they filed Darkhast No.23 of 1937 to execute the decree. Thereafter the opponents obtained a decree against the said Sogaji Marwadi and four other persons in their individual capacities, and filed darkhast No.176 of 1939 to execute their decree. In the opponents' darkhast certain property belonging to Sogaji was sold and the sale-proceeds thereof were deposited in Court. The petitioners applied for rateable distribution of the assets inasmuch as they had obtained a decree against Sogaji. Their case was that in their suit against the firm of Kapurji, Sogaji was served and had also appeared in his own name. The decree was, therefore, executable personally against Sogaji. That being so, the capacity of Sogaji in both decrees was the same and they were entitled to rateable distribution in the sale-proceeds of his property in the opponents' darkhast.

(2.) THE trial Court rejected the application on the ground that the petitioners would be entitled to rateable distribution under Section 73 only if both the decrees were against the same judgment-debtor; that-the petitioners' decree was against Sogaji in his capacity as a partner of the firm of Kapurji while the opponents' decree was against him in his individual capacity. Thus, although the name was the same, Sogaji occupied different capacities in both the decrees, and therefore Section 73 was inapplicable. In coming to that conclusion the learned Judge relied upon two decisions, one of the Calcutta High Court in Balmer Lawrie & Co. v. Jadunath Barterjee, (1914) I.L.R. 42 Cal. 1 and the other of the Lahore High Court in Sadhu Ram v. Dhanpat Rai-Telu Ram, (1937) I.L.R. 18 Lah. 637 both of which were followed by our High Court in jamiyatram Gaurishankar v. Umiyashankar Pranshankar. (1941) 43 Bom. L.R. 699 THE petitioners had relied upon the decisions in Radha Kanta v. Pulin Krishna, (1937) 42 C.W.N. 310 which had followed the decision of our High Court in Administrator General v. Sultanalli Sushtary. (1926)29. Bom. L.R. 396 In the opinion of the learned Judge below the case of Administrator General v. Sultanalli Sushtary was distinguishable from the present case, and the decision in Radha Kanta v. Pulin Krishna being opposed to that in Balmer Lawrie & Co. v. Jadunath Banerjee he preferred to follow the latter, especially as it had been followed in Jamiyatram v. Uimyashankar. In order to appreciate the grounds of these decisions, it is necessary to refer to the relevant provisions of the Civil Procedure Code on this point. Under O. XXX, Rule 1, any two or more persons liable as partners may be sued in the name of the firm. Under Rule 3, where persons are sued as partners in the name of their firm, the summons shall be served upon any one or more of the partners, and under Rule 5, where a summons is issued to a; firm and served in the manner provided by Rule 3, every person upon whom it was served shall be informed by notice in writing given at the time of such service, whether he was served as a partner or as manager, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner. Under Rule 6, where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall continue in the name of the firm. Lastly, Rule 7 provides that where a summons is served in the manner provided by Rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.

(3.) IT is true that both the decisions in Balmer Lawrie & Co. v. Jadunath Banerjee and Sadhu Rant v. Dhanpat Rai-Telu Ram have been followed in the recent decision of our High Court in Jamiyatram v. Umiyashankar. In that case, however, the question was not between a person in his capacity as a partner and his capacity as an individual. But the decree there was obtained against a person individually and another decree against that person as representative of a deceased person, and it was held that the two decrees were not decrees against the same judgment-debtor because he held two different capacities, as his individual capacity was not the same as his capacity as the heir of a deceased person. The decisions in Balmer Lawrie & Co. v. Jadunath Banerjee and Sadhu Ram v. Dhanpat Rai-Telu Ram seem to have been relied upon on behalf of the respondent, and they were cited with approval in support of the proposition that a decree against A in his personal capacity and another against him as heir of a deceased person were not against the same judgment-debtor. To my mind there is a clear distinction between a person in his capacity as the heir of another person and a person who is a member of a firm and who is personally liable by virtue of the specific provisions of O. XXI, Rule 5 0. This point does not seem to have been brought to the notice of the Court, and the two judgments had been relied upon and cited with approval only for the general proposition that the judgment-debtor would not be the same where he filled two different capacities. I am unable, therefore, to see how the decision in Jamiyatram v. Umiyashankar applies to the facts of the present case. On the other hand, there is an earlier decision of our High Court in Administrator General v. Sultanalli Sushtary, the principle of which would apply to our case. In that case certain partners obtained a money decree in their individual capacities against a person who had also obtained a money decree against the firm composed of those partners. The question was whether the two decrees could be set off against each other under O. XXI, Rule 18, of the Civil Procedure Code, and it was held that they could be set off because the cross decrees were between the same parties. The ratio decidendi of this case applies to the present case, because while under O. XXI, Rule 18, cross decrees must be between the same parties, under Section 73 the judgment debtor must be the same. In other words, the parties should fill the same character. This decision has been followed very recently by the Calcutta High Court in Radha Kanta v. Pulin Krishna. The facts of that case are similar to those in the present case, and in my opinion the reasoning adopted in that decision clearly supports the proposition that where a partner is served and appears in a suit to defend it against the firm, the decree could be executed against him personally, and that therefore he would be the same judgment-debtor in that decree and also in another decree obtained against him personally. This decision is in accordance with the provisions of Os. XXI and XXX which I have cited above. As the judgment-debtor Sogaji fills the same personal character in both the decrees, the petitioners are entitled to rateable distribution in the darkhast filed by the opponents.