GORDHANDAS KESHAVLAL Vs. RAMCHAND BANARSIDAS

JUDGEMENT

(1.) THIS application in revision has been filed by opponent No.1 who was alleged to be one of the partners in the firm of Messrs. Mangaldas Amratlal against whom a decree had been taken by the present opponent, i. e. the original plaintiff firm of Messrs. Ramchand Banarsidas. After the decree was passed against the firm of Messrs. Mangaldas Amratlal, the present opponent applied to the Court of the Presidency Small Causes Court at Bombay which had passed the decree to execute it against three persons, one of whom was the present petitioner, on the ground that they were all partners in the firm of Messrs. Mangaldas Amratlal. That application was made under Order XXI, Rule 50, of the Civil Procedure Code. All the three persons appeared and contended that they were not partners of the said firm. The learned Judge held that two of them were not partners, but the present petitioner was a partner as he had himself admitted to be such in the vakalatnama which he had signed. The lower Court ordered execution to issue against him as such. Against that order the petitioner filed an application to the Full Court of the Bombay Small Causes Court, but that Court declined to give a rule on the ground that there was no jurisdiction. I may add here that the original decree against the firm was a consent decree as against the firm, but the subsequent proceedings had been contested on behalf of the three persons who were alleged to be partners.

(2.) AS against the order dismissing that application by the Full Court the petitioner has come here in revision, and the only point that arises is whether the Full Court had no jurisdiction to entertain the application for a rule. That question turns upon the construction to be placed on the wording of Order XXI, Rule 50, of the Civil Procedure Code, as read with Section 38 of the Presidency Small Cause Courts Act.

(3.) ON the other hand, it has been argued on behalf of the opponent that all that Order XXI, Rule 50, Sub-rule (3), says is that an order made in these proceedings is to have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree, and that, therefore, it cannot be said that this order is either an order in a suit or a decree in a suit as if it were an order or a decree, and that therefore the proceedings, although they may be in a suit, did not themselves constitute a suit with the result that Section 38 of the Presidency Small Cause Courts Act, which contemplates only a suit, cannot apply to such proceedings, although it would apply to all the previous stages which would terminate in a decree in the suit.