RADHAKARAN KABRE Vs. SAIFEE BROTHERS
LAWS(BOM)-1954-12-13
HIGH COURT OF BOMBAY
Decided on December 15,1954

RADHAKARAN KABRE Appellant
VERSUS
SAIFEE BROTHERS Respondents


Referred Judgements :-

DAVIS V. HYMAN AND CO. [REFERRED TO]


JUDGEMENT

- (1.)THIS is a chamber summons taken out by the plaintiffs for leave under Order 21. Rule 50, Civil P. C. , to execute a decree on an award obtained by them in this Court against Akbar-ally Mulla Rasoolji, as a partner of the firm of Saifee Brothers, the defendants. The hearing of the summons was adjourned into Court. Mr. Shavaksha, learned counsel for the plaintiffs, has. asked me to raise an issue in the following form: "whether Akbarally Mulla Rasulji (The person sought to be held liable was, or held himself out to be, a partner in the defendant firm. "
(2.)MR. Mody, learned counsel for Akbarally Mulla Rasoolji, has urged that such a wide issue cannot be raised in proceedings under Order 21, Rule 50, of the Code. It will be convenient to set out Sub-rule (2) Of Order 21, Rule 50 :
"where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such person as Is referred to in Sub-rule (1), Clauses (b) and (c), as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not, disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. "

(3.)IT was argued that these are execution proceedings and this sub-rule empowers the Court only to decide the question whether the person against whom the decree is sought to be executed was a partner in the firm against' which the decree was obtained. Considerable stress was laid on the words "as being a partner in the firm. " Now, there would have been some force in this argument if the words at the end of this sub-rule were not there. The words "where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined" at the end of the sub-rule Indicate that what the Court has to determine in proceedings under Order 21, Rule 50, is the question of liability of such a person as a partner. Not only that taut these words at the end of the sub-rule clearly indicate that in determining the liability of any such person the Court will proceed with the matter as if it was trying and determining an issue in a suit filed against that person to hold him liable for the claim of the plaintiffs against the firm. It is not possible, therefore, to acquiesce in the argument that the only material words to be considered are "as being a partner in the firm" and on which learned counsel has strongly leaned. The liability of a person would arise not only on the ground that he was in fact a partner in the defendant firm against which the decree was obtained but liability may be foisted on him also on the ground of his having held himself out as a partner in that firm. The argument had inevitably to go to the length of suggesting that if a plaintiff obtained a decree in a suit against a firm and wanted to execute that decree under Order 21, Rule 50, he could execute that decree only against persons who were In fact partners in the firm and not against any person who had held himself out as a partner in that firm. If the plaintiff desired to recover the amount of his claim in any such suit against a person on the ground of holding out, it was incumbent on, him to join such person as a party defendant to the suit and plead that he was liable if not as a partner in any event on the ground of holding himself out as a partner. Or else, so the argument proceeded, he would have to file another suit against that person asking for a declaration that he had held himself out as a partner.


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