RUSSA ENGINEERING WORKS LTD Vs. KANARA TRANSPORT CO

JUDGEMENT

(1.) This is an appeal that arises out of an application to execute a decree which was passed against two defendants, the Kanara Transport Co. and Captain Bhandarkar. The decree, as is usual with decrees against firms, was obtained in the firm's name, there being at that time no question as to who were the partners of that firm. Under the Rules on the Original Side that question has to be raised, in cases where each of the alleged partner is not served personally, in execution of the decree. Where it is sought to execute the decree against persons who are not named but simply as against a firm, notice has to go to those persons to show cause why execution should not go against them as partners of the firm. In this case such notices went and we are concerned with two persons, Sanjeeva Rao and Panduranga Bhat. Sanjeeva Rao did not appear and contest the motion and an ex parte order for execution was passed as a matter of course. Panduranga Bhat appeared and denied that he was a partner. His case was that he was asked to become a partner in this firm by Captain Bhandarkar who is his brother- jn-law, that he agreed to become a partner on condition that the accounts were looked into, and Sanjeeva Rao ceased to be a partner and he took his place as partner and that as none of these conditions was fulfilled he has not become a partner of the firm and therefore is not liable on any claim against the firm.

(2.) The partnership was started under an oral agreement; at any rate, we do not find any document evidencing the partnership when it was started. According to the evidence it was started on the 1 October, 1922. It is clear from the evidence and Exs. III, IV and VI that Panduranga Bhat was not a partner when the partnership was started or for some time afterwards. Ex. II, as to the genuineness of which there is no dispute, is dated the 17 April, 1923 and is signed by Panduranga Bhat, Bhandarkar, Sundar Rao and Shiva Rao. The document runs as follows: We, viz., (1) Uppinangady Panduranga Bhat, (2) P.R. Bhandarkar, (3) Kalle Sundar Rao, and (4) Kalle Shiva Rao, are the only partners of the concern named Kanara Transport Co., Mangalore, South Kanara, and there are no other partners. Mr. Kalle Sanjeeva Rao is no longer a partner of the firm. All the four partners are entitled to share in the profits and losses equally. All the four of us are jointly and severally liable for the debts of the concern hitherto incurred. A regular deed of partnership will be entered into within a fortnight from date.

(3.) It is clear from this document thai there is a specific statement made that Sanjeeva Rao was no longer a partner of the firm, so that, even assuming the respondent's case to be true, one of the conditions that were necessary, namely, the retirement of Sanjeeva Rao, is specifically stated in Ex. II. As regards other conditions they are not set out in Ex. II and we agree with the learned Judge in thinking that we cannot import into Ex. II the other conditions alleged.