KALU RAM Vs. SHEONAND RAI JOKHI RAM

JUDGEMENT

(1.) In this case firm Sheonand Rai Jokhi Ram, sued a firm named Ganpat Rai Hanuman Bux situated at Jayanagar in the district of Darbhanga in the High Court of Fort William in Bengal to recover a sum of money and obtained a decree against the defendant firm for that sum and the ease was transferred to the Court of the Subordinate Judge at Darbhanga for the purpose of executing the decree. There the decree-holders applied, purporting to act under Order 21, Rule 50, Civil P.C., for execution of the decree against five persona who are the appellants before us alleging that they were partners in the defendants firm of Ganpat Rai who were defendants in the suit in Calcutta. An objection was taken that the executing Court had no jurisdiction to add the appellants to the proceedings or what is in effect to amend the decree passed by the Calcutta High Court. Now execution proceedings against a firm are provided for under Order 21, Rule 50 in the most specific terms. That rule provides that where a decree has been passed against a firm execution may be granted: (a) against any property of the partnership (b) against any person who has appeared in his own name or who has admitted on the pleading that he is, or who has been adjudged to be a partner, (c) against any person who has been individually served as a partner with a summons and has failed to appear.

(2.) It is conceded that none of these provisions applies to the case of the appellants before us. Then by para (2) of the same rule it is laid down that where a decree-holder claims to be entitled to cause a decree to be executed against any person other than such persons as are referred to in para 1. I have quoted as being a partner in the firm he may apply to the Court which passed the decree for leave and then the rule goes on to say that the Court may deal with that application and determine the liability of such person against whom the application is made. It is perfectly clear that the words "the Court which passed the decree for leave" do not include the executing Court but in this case refers to the High Court of Calcutta and to no other Court. The words "Court which passed the decree" are mentioned in other rules and have universally been construed to mean not the executing Court but the original Court which actually passed the decree: see Amar Chandra V/s. Guru Prosnnno [1900] 27 Cal. 4.88.Tameshar Prasad V/s. Thakur Prasad [1903] 25 All. 444.

(3.) One would have thought that this was sufficient to deal with the case but the learned Subordinate Judge was induced by the citation of the case of Sital Prasad V/s. Messrs. Clements Robson & Co. AIR 1921 All. 199 to take a different view. The facta in that case are in the first place entirely different from the facts of this case. In the case before the Allahabad High Court execution was sought against two persons who had in fact appeared before the Court which passed the decree. They had denied their liability as partners but the High Court seems to have sent the ease to the subordinate Court with a view to determine as to whether these persons were or were not partners so that the facts of that case are entirely different from the facts of this.