KANJI VISHRAM Vs. JIVRAJ DAYAL

JUDGEMENT

(1.) In this case the plaintiff obtained a decree against the firm of Kanji Khimji and Company by their partner the present applicant Kanji Vishram and two others Pragji Monji and Bhimji Bhanji. The suit was tried by the Chief Judge Mr. Jhaveri and a decree was passed against the defendants on June 20, 1924. Subsequently, the plaintiff made an application for leave to execute the decree under Order XXI, Rule 50, Sub-rule (2), of the Civil Procedure Code, and it was contended by the applicant that as the plaintiff knew of the fact of the dissolution of the firm of Kanji Khimji and Company, he was not liable as a partner inasmuch as he was not individually served under Order XXX, Rule 3. The Chief Judge Mr. Chitre, before whom this application was made, came to the conclusion that the plaintiff was not aware of the fact of the dissolution of the firm of Kanji Khimji and Company when the plaintiff filed this suit. Under Order XXI, Rule 50, execution could be granted at once in the contingencies mentioned in Sub-rule (1). Where, however, the decree- holder wishes to execute a decree against any person other than those referred to in Clauses (6) and (c) of Sub-rule (1), he has to apply to the Court which passed the decree for leave, and when the liability is not disputed, the Court is entitled to grant the leave. Where, however, such liability is disputed, the Court may order that the liability of such person should be tried and determined. When such liability is tried and determined under Sub-rule (3) the order shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Against the order of Mr. Chitre, an appeal was filed to the Full Court, and the Full Court came to the conclusion that it had no jurisdiction presumably on the ground that the original decree was ex parte, and the application under Order XXI, Rule 50, Sub-rule (2), was not a suit within the meaning of Section 38 of the Presidency Small Cause Courts Act.

(2.) Two questions, therefore, arise for consideration, first, whether the order passed by the lower Court under Order XXI, Rule 50, Sub-rule (2), was passed without jurisdiction, and, secondly, whether the Full Court had jurisdiction under Section 38 of the Presidency Small Cause Courts Act.

(3.) On the first point it is urged that Order XXI, Rule 50, is governed by Order XXX, Rule 3, and Sub-rule (2) would only apply when there is no dissolution known to the plaintiff. The question, therefore, arising in the case is whether the dissolution of the firm was known to the present plaintiff at the time of the institution of the suit. Reliance has been placed on behalf of the applicant on the application made on April 30, 1924, in which the plaintiff stated that the firm of Kanji Khimji and Company closed its business at a certain place and he was not aware of the whereabouts of the partners. It would be difficult to draw an inference from that application that as a matter of fact the plaintiff knew of the dissolution of the firm of Kanji Khimji and Company. On the other hand, the finding of the learned Judge that the applicant accepted his liability as a partner in identical circumstances is based on Exhibit C in which a consent order was passed against the applicant. Further there is a clear finding that the plaintiff was not aware of the fact of the dissolution of the firm of Kanji Khimji and Company when the plaintiff filed the suit. This finding is supported by the evidence of the plaintiff who deposed that he did not know of the dissolution of the firm of Kanji Khimji and Co. We accept that finding, and therefore, the first objection fails.