GORDHANDAS KESHAVLAL Vs. RAMCHAND BANARSIDAS

JUDGEMENT

(1.) This application in revision has been filed by opponent No. 1 who was alleged to be one of the partners in the firm of Messrs. Mangaldas Amratlal against whom a decree had been taken by the present opponent, i.e. the original plaintiff firm of Messrs. Ramchand Banarsidas. After the decree was passed against the firm of Messrs. Mangaldas Amratlal, the present opponent applied to the Court of the Presidency Small Causes Court at Bombay which had passed the decree to execute it against three persons, one of whom was the present petitioner, on the ground that they were all partners in the firm of Messrs. Mangaldas Amratlal. That application was made under Order XXI, Rule 50, of the Civil Procedure Code. All the three persons appeared and contended that they were not partners of the said firm. The learned Judge held that two of them were not partners, but the present petitioner was a partner as he had himself admitted to be such in the vakalatnama which he had signed. The lower Court ordered execution to issue against him as such. Against that order the petitioner filed an application to the Full Court of the Bombay Small Causes Court, but that Court declined to give a rule on the ground that there was no jurisdiction. I may add here that the original decree against the firm was a consent decree as against the firm, but the subsequent proceedings had been contested on behalf of the three persons who were alleged to be partners.

(2.) As against the order dismissing that application by the Full Court the petitioner has come here in revision, and the only point that arises is whether the Full Court had no jurisdiction to entertain the application for a rule. That question turns upon the construction to be placed on the wording of Order XXI, Rule 50, of the Civil Procedure Code, as read with Section 38 of the Presidency Small Cause Courts Act.

(3.) It has been urged on behalf of the petitioner that the lower Court was in error in holding that it had no jurisdiction because Order XXI, Rule 50, Sub-ruler (2) and (3), contemplate that where a decree-holder claimed to be entitled to execute the decree against a person who had not appeared in the suit, the Court might order that the liability of such person should be tried and determined in any manner in which any issue in a suit might be tried and determined, and that where the liability of such person has been tried and determined under Sub-Rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. It is contended that this provision read with Section 38 of the Presidency Small Cause Courts Act, which gives power to the Full Court to take cognizance of an application before it, clearly gives jurisdiction to it inasmuch as it says that where a suit has been contested, the Small Causa Court may, on the application of either party, made within eight days from the date of the decree or order in the suit..., order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.