JUGGILAL KAMLAPAT Vs. SEW CHAND BAGRI

JUDGEMENT

(1.) This is an appeal against an order of Mitter, J., dated the 3oth July, 1959. The facts are shortly as follows :

(2.) One Sew Chand Bagri had three sons, Moti Chand, Manik Chand and Jankidas. During his life time, the said Sew Chand Bagree and his sons constituted a Hindu joint family and carried on business as such, under the name and style of Sew Chand Bagree. In 1932, Sew Chand Bagree died. The three brothers constituted a partnership and continued the business. In 1934 the partnership was registered. We have before us a certificate granted by the Registrar of firms which shows that on the 18th April, 1934 the firm of Sew Chand Bagree was carrying on business in partnership at 32 Cross Street, Calcutta, of which the partners were Manik Chand Bagree, Moti Chand Bagree and Jankidas Bagree. This partnership is said to have been dissolved after Dewali 1945. On or about the 7th June, 1946, a deed of dissolution was drawn up in the form of an agreement, a ropy whereof is set out at pages 154 to 155 of the Paper Book. This agreement states that the three brothers were carrying on business under partnership in the name and style of Sew Chand Bagree at No. 32 Cross Street, Calcutta, and that they had agreed that after the Dewali day of 1945, they would not carry on any business under that name and style, but would be at liberty to start their own business and carry on such new business. It was agreed that Manik Chand would carry on business in the name of 'Manik Chand Bagree', and Moti Chand would carry on a business in the name and style of 'Sew Chand Moti Chand', but Jankidas Bagree would be entitled to carry on business under the name and style of 'Sew Chand Bagree'.

(3.) Sometime in September, 1948 the appellant Juggilal Kamlapat entered into a contract with the firm of Sew Chand Bagree for a number of jute bags. These goods not having been delivered, the appellant demanded damages and referred the dispute to the arbitration of the Bengal Chambers of Commerce. On the 14th June, 1950, the Bengal Chambers of Commerce made an award in favour of the appellant and against Sew Chand Bagree. On the 28th May, 1951, a judgment upon award was passed by this Court. On the 16th April, 1958, an application was made by the appellant under the provisions of Order 21 Rule 50 2. of the Code of Civil Procedure, for leave to execute the decree against the respondents Manik Chand, Moti Chand and Jankidas on the footing that they were all three partners of the firm of Sew Chand Bagree. Manik Chand and "Moti Chand have appeared and contested this application. They say that in the facts and circumstances they were not liable, and the decree could not be executed against them.