BHAGVAN MANAJI MARWADI Vs. HIRAJI PREMAJI MARWADI

JUDGEMENT

(1.) One Gamnaji Jethaji, styling himself as the proprietor of the shop of Hiraji Premaji, brought Suit No. 151 of 1921 in the Court of the First Class Subordinate Judge at Bijapur against the firm of Mulchand Raychand by its partners (1) Dullabh and (2) Babasing. Dullabh referred the matter to arbitration without the leave of the Court and an award was made and a decree passed for Rs. 3,261 against the firm of Mulchand Raychand. Suit No. 297 of 1927 was brought by Dullabh, Babasing, and Rayohand claiming some amount from Gamnaji in respect of the same matter, but the suit was dismissed. The decree-holder recovered Rs. 2,585 from the partnership property by several darkhasts in 1922, 1923, 1924 and 1927, and darkhast No. 43 of l928 was brought by Chhaganlal, son of Gamnaji, who died in the meanwhile, for recovery of Rs. 2,478, the balance of the decretal amount from the private property of the other partners who were not served in the suit, namely, Mulchand, Bhagvan and Rayohand, and an application was made under Order XXI, Rule 50, Clause (2), for leave to execute the decree personally against the other partners who were residents of Sarpore under the Bulsar Court in the Surat District. An application was made to the First Class Subordinate Judge at Bijapur to send the decree for execution to the Bulsar Court under Order XXI, Rule 5.

(2.) The three partners against whom the decree was sought to be executed personally, namely, Mulchand, Bhagvan and Raychand, brought Suit No. 414 of 1928, for a declaration that the decree in Suit No. 151 of 1921 was not binding on them, in the Court of the First Class Subordinate Judge of Bijapur. The application under Order XXI, Rule 50, Clause (2), was stayed till the decision of this suit. The learned Subordinate Judge dismissed the suit on the ground that Dullabh had implied authority to make the reference to arbitration. The learned Judge, therefore, granted leave under Order XXI, Rule 50, Clause (2), and issued a certificate under Order XXI, Rule 5, for transfer of execution to the Bulsar Court. Bhagvan, Mulchand and Raychand filed First Appeal No. 27 of 1930 to the High Court against the decision of the First Class Subordinate Judge in the application of the decree-holder under Order XXI, Rule 50, Clause (2), but only Mulchand and Bhagvan filed an appeal to the District Court in Suit No. 414 of 1928. The learned District Judge held that Dullabh, one of the partners, had no power to refer the matter to arbitration and the decree was not binding against the other partners who were not served in the suit. But as Raychand had not .appealed against the decree of the lower Court, he allowed the decree to stand as regards Raychand and allowed the appeal of Mulchand and Bhagvan, Chhaganlal, the decree-bolder, filed a Second Appeal No. 380 of 1931.

(3.) Three points have been taken in Appeal No. 27 of 1980 brought by the partners who were not duly served in the suit brought against the firm of Mulchand Raychand, It is urged firstly that Chhaganlal cannot recover the amount without the production of a succession certificate under Section 214 of the Indian Succession Act; secondly, that the application under Order XXI, Rule 50, Clause (2), is not within time; and thirdly, the appellants being partners who were not personally served in the suit, the award made under a reference, to which only Dullabh was a party, is not binding on the other members of the firm and therefore they are not liable to be proceeded against under Order XXI, Rule 50, Clause (2).