KODOOMAL J WADHWA Vs. MANGATRAM SUGNICHAND

JUDGEMENT

(1.) [His Lordship after dealing with matters not material to this report continued :] When this case was called on before me, Mr. Tendulkar informed me that he appeared under protest for three alleged partners, (1) Sugnichand Mangatram, (2) Radhelal Hanandlal, and (3) Raghubarsing Oomarsing, who had been duly served as such.

(2.) At the close of the case, he asked me to reserve him liberty to apply in the suit for the costs of entering an appearance under protest in two events (1) the event of the plaintiffs not applying under Order XXI Rule 50, for leave to issue execution against these three persons, and (2) the event of the plaintiffs so applying for leave and the execution Court holding that these three persona were not partners.

(3.) The difficulty involved in a case, where an alleged partner enters an appearance under protest as regards the costs incurred by him in doing so, appears to me to be this, that unless some provision is made in the decree which finally disposes of the suit for costs incurred in the suit up to the date of the hearing of the decree, the Judge will be functus offcie. It was suggested by Mr. Kania at first that these costs might in some manner be provided for in the execution proceedings if they are taken. I am quite unable to see how the executing tribunal could deal at all with costs incurred not in those proceedings but in the suit itself. Moreover, if no execution proceedings are taken, the question arises by what machinery could the alleged partners then obtain an order for the costs of entering an appearance under protest,