KRITANTA KUMAR GUHA, RECEIVER OF FIRM STYLED KRISHNA CHANDRA SONATAN MAHIM CHANDRA AND RAJANI KANTA PAUL Vs. PULLIN KRISHNA (BEHARY IN VOK) PAL

JUDGEMENT

(1.) The facts which give rise to this appeal and the rule are as follows : The appellants in the appeal from original order who are the petitioners in the civil revision obtained a decree for Rs. 1,30,000 against a firm known as Ram Krishna Bejoy Krishna Pal on the Original Side of this Court on 27 November 1929. On 6 February 1935 this decree was transferred for execution to the Court of the Subordinate Judge at Nadia. This execution case was registered as Execution Case No. 23 of 1935. Radha Gobinda Pal, the opposite party in the civil revision case obtained a decree against Pullin Behari Pal and Anil Krishna Pal and three others persons for Rs. 2371-11.6, on 7 June 1933 in the Court of the Subordinate Judge of Nadia. He put this decree into execution on 5 December 1933, This execution was registered as Money Execution Case No. 258 of 1933. On 6 April 1935, the appellants applied for rateable distribution of the money which would be brought to Court in Execution Case No. 258 of 1933 as sale proceeds of certain properties attached in the said execution case. The properties were actually sold on 11 April 1935. On 29 June 1935, the learned Subordinate Judge heard the application of the appellants for rateable distribution and rejected it on the following grounds : (1) that the execution of the decree obtained by the appellants was bad in law; (2) that the property which was sold was personal property of Pulin only and (3) that there was no satisfactory evidence to show that the property sold belonged to the firm against which the appellants obtained their decree on the Original Side of this Court.

(2.) The present) rule is directed against this order, On the same day the learned Subordinate Judge adjourned the Execution Case No. 258 of 1933 to 6 July for orders. Ultimately it came up for hearing on 13 July 1935 and was dismissed, as no steps were taken by the decree- holder to proceed with the case. The miscellaneous appeal is directed against this order

(3.) The first point urged by the learned advocate for the appellants is that the learned Subordinate Judge was in error in holding that the appellants application for execution of the decree was bad in law, This contention is well founded. This decree was no doubt obtained against the firm known as Ram Krishna Bejoy Krishna Pal. Under Order 30, Civil P. C, the suit is to be brought against the firm. When a suit is brought against a firm and judgment obtained against it, the action is really against the persons who constituted the firm and the judgment is really a judgment against the individuals : See In Re: Handford & Co.; Ex parte Handford (1899) 1Q B 566 at p. 570. It is Battled law that the effect of the provisions with regard to suing partners in their firm name is merely to give a compendious mode of describing in the writ the partners who compose the firm and that the plaintiff who sues partners in the name of their firm in truth sues them individually, just as much as if he had set out all their names : see Ram Prosad V/s. Anundjl & Co. (1922) 9 AIR Cal 408 at. p. 527; Brojo Lal Saha Banikya V/s. Budh Nath Pyazilal & Co. .