ADIVEPPA SHIDLINGAPPA HANCHIMAL Vs. PRAGJI MOHANJI LOHANA

JUDGEMENT

(1.) Suit No. 409 of 1920 was filed in the Court, of the First Class Subordinate Judge, Dharwar, by certain plaintiffs against the firm of Shivji Kuverji & Co. to recover Rs. 42,604-12-0 which it was alleged was due to the plaintiffs in their account with the defendant firm. The five partners in the defendant firm were mentioned in the title to the plaint, and attempts were made to serve the summons on all of them. The record of the case shows that defendants Nos 1 to 4 were absent though duly served, while defendant No. 5 at the first hearing raised certain contentious which were dealt with as preliminary issues. After those issues were decided, the Judge proceeded to hear the case on the merits when no one appeared on behalf of the defendants, and, on January 11, 1922, a decree was passed for Rs 42, 604-12-0 and costs against the firm of Shivji Kuverji & Co. Under Order XXX, rule 3, the summons could be served either upon any one or more of the partners, or at the principal place at which the partnership business was carried on within British India upon any person having, at the time of service, the control or management of the partnership business there, as the Court might direct; and such service would be deemed good service upon the firm so sued, whether all or any of the partners were within or without British India.

(2.) Apart, therefore, from the case of the first defendant who says that he never received service of the summons, it is perfectly clear that service of the summons on the firm had been properly effected and the decree properly passed against the firm. Under Art. 164 of the Indian Limitation Act an application to set aside the decree, assuming it was an ex parte decree, would be barred after thirty days from the date of the decree.

(3.) On May 31, 1922, the first defendant made an application to the Court through his attorney to have the ex parte. decree set aside. He described himself as partner and receiver of the firm of Shivji Kuverji & Co Before that litigation had commenced between the partners of the firm and the first defendant had been appointed receiver of the partnership assets. As such receiver he would be entitled to defend suits against the firm, and he would also be entitled to apply to have an ex parte. decree passed against the firm set aside, provided he made the application in time. But he has mixed up his position as an individual partner and as receiver in a most inexcusable way. The Judge on various grounds allowed the application and set aside the decree passed against the firm. Various questions of law arose in the course of the argument on this application, but without going into these it seems to me the Judge has committed material irregularities in the course of his decision by exercising jurisdiction which was not given to him by law.