NATVARLAL TRIBHOVANDAS Vs. EDSASSOON AND CO LTD

JUDGEMENT

(1.) There were certain dealings between the firm of Chunilal Lallubhai and the firm of E.D, Sassoon, which dealings were referred to arbitration. An arward followed upon that arbitration, and the firm of Chunilal Lallubhai sued to set aside the award. The plaint was filed on December 2, 1923. The defendants counterclaimed on the footing of the award, and called upon the plaintiffs solicitors to disclose the names of the partners in the firm. That was presumably done under the provisions of Order 30, Rule 2. In reply on February 4, 1924, the plaintiffs solicitors gave five names including the name of Natvarlal Tribhovandas who is now the appellant before us. The suit was dismissed with costs and the counterclaim was allowed with costs. The decree was against the firm of Chunilal Lallubhai. This decree was then transferred for execution to the Court of the First Class Subordinate Judge of Broach, and defendants Messrs. R.D. Sasoon & Co., who were the decree-holders, moved the Court for execution. The appellant Natvarlal Tribhovandas contended that he was not a partner, but the Court decided that by reason of the terms of Order 30, Rule 2, Sub-rule (3), that point was not open to him, and directed that execution should proceed against the appellant personally. Against that order he now appeals.

(2.) The decree was a decree against a firm, and the provisions of Order 21, Rule 50, are therefore applicable. In such cases execution is permitted as a matter of course against the property of the partnership or against any person who is within the terms of Clause (b) or Clause (c) of the first paragraph of that rule. Now it cannot be said here that the appellant appeared in his own name under Rule 6 or Rule 7 of Order 30, or that he has admitted on the pleadings that ha is a partner, or that he has been adjudged to be a partner. There is no appearance by him in his own name, and no admission made by him, and no adjudication. His case is that he never authorized the plaintiffs solicitors to state that he was a partner in the firm, and in the absence of proof of any such authority there is clearly no admission. Clearly again he is not a person who has been individually served with summons as a partner, and therefore he does not come within Clause (b) or Clause (c) of the first paragraph of Rule 5O. But it is argued before us, and that argument has found favour with the lower Court, that by virtue of certain words in Order 30, Rule 2(3), this question of partnership is in some way concluded. Referring to the disclosure made of the names of the partners the Sub-rule (3) runs as follows: The suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they (that is, the persons whose names are disclosed) had been named as plaintiffs in the plaint.

(3.) Taking those words as they stand, I should be inclined to hold that they refer to the proceedings in the suit and they have no application to anything that follows after the suit has reached the stage of a decree and has thus been completed.