C S RAMANUJACHARY Vs. POHOOMAL BROS

JUDGEMENT

(1.) The plaintiffs filed this suit against Messrs. Charry and Charry, a firm, to recover the sum of Rs. 2,500 with interest thereon said to be due on a promissory note, dated November 2, 1923, which had matured on January 10,1924. Under the provisions of Order 37, Rule 2, a summons was issued in accordance with form No. 4 of Appendix to the First Schedule of the Civil P.C.

(2.) Thereupon one P.S. Ramanujachary applied for an order that leave should be granted to him to appear and defend the suit or, in the alternative, to appear and defend the suit to the extent that he was not a partner at any time material to the suit and was not liable for the plaintiffs claim. In his affidavit in support of the summons the applicant alleged that the partnership between himself and T.S. Varadachary in the firm of Gharry and Gharry was dissolved by-mutual consent so far back as April 18, 1923. The following order was made by the Chamber Judge on March 20, 1924, on the summons, after hearing the parties and reading numerous affidavits: I do order that the applicant be and is hereby given leave to appear and to contend that he was not a partner in the firm of defendants at any time material to that suit and I do further order that the said issue be tried in Court on June 24 1924.

(3.) For some reason not known to us it was not until September 21, 1925, that the case came on before Mr. Justice Mirza for trial of the issue. A question was first argued regarding the effect of the order of March 20, 1924. Mr. Colt-man for She applicant contended that the only issue the Court was competent to try was whether the applicant was or was not a partner at the date of the hundi in suit. The learned Judge ruled that, although that might be regarded as the issue before him, it should be open to the plaintiff to contend that in case the applicant was not a partner at the date of the hundi he held himself out to be such and was hence liable to the plaintiffs. He further ruled that it should be open to the plaintiffs to contend that the applicant should be held liable for the amount of the hundi on the ground that the amount had gone towards payment of a liability incurred while the partnership was in subsistence and the plaintiffs were entitled on the principle of subrogation to stand in the shoes of the creditors of the partnership who were paid off by moans of the amount so borrowed.