KANJI SHIVJI Vs. VASANJI SHIVJI AND CO

JUDGEMENT

(1.) This summons raises the question as to whether an order made under Order XXI, Rule 50, Sub-clauses (2) and (3), of the Civil Procedure Code, granting leave to the decree-holder to execute the decree against a person other than such a person as is referred to in Sub-rule (1), Clauses (6) and (c), as being a partner, is a decree within the meaning of Section 2, Sub- clause (2), of the Civil Procedure Code.

(2.) The plaintiff obtained a decree for Rs. 33,628-11 against the 1928 defendant firm on July 27, 1927, The writ of summons was served on Sejpal, one of the partners in the defendant firm. Being desirous of executing the decree against the other partners including the applicant Doongersi Shivji, the plaintiff took out a chamber summons under Order XXI, Rule 50, Civil Procedure Code, and, on September 16, 1927, obtained an order granting leave to execute the decree against them. A copy of the chamber summons was sent by Registered post to Doongersi Shivji at his address in Cutch who, as appears from the affidavit of service, refused to accept it. Thereafter the plaintiff obtained a warrant of arrest against Doonj|erei Shivji who, it was alleged, had come down to Bombay. The order for the issue of a warrant of arrest against Doongersi was made on November 10, 1927.

(3.) The summons before me is taken out by Doongersi Shivji for vacating the two order made on September 16 a November, 10, 1927, respectively,! The applicant swears that a copy of the chamber summons was not tendered to him and it is conceded that the ex part order of September 1927 must be vacated if the application is not barred by limitation.