Divatia, J. -
(1.) THIS application in revision has been filed by opponent No.1 who was alleged to be one of the partners in the firm of Messrs. Mangaldas Amratlal against whom a decree had been taken by the present opponent, i. e. the original plaintiff firm of Messrs. Ramchand Banarsidas. After the decree was passed against the firm of Messrs. Mangaldas Amratlal, the present opponent applied to the Court of the Presidency Small Causes Court at Bombay which had passed the decree to execute it against three persons, one of whom was the present petitioner, on the ground that they were all partners in the firm of Messrs. Mangaldas Amratlal. That application was made under Order XXI, Rule 50, of the Civil Procedure Code. All the three persons appeared and contended that they were not partners of the said firm. The learned Judge held that two of them were not partners, but the present petitioner was a partner as he had himself admitted to be such in the vakalatnama which he had signed. The lower Court ordered execution to issue against him as such. Against that order the petitioner filed an application to the Full Court of the Bombay Small Causes Court, but that Court declined to give a rule on the ground that there was no jurisdiction. I may add here that the original decree against the firm was a consent decree as against the firm, but the subsequent proceedings had been contested on behalf of the three persons who were alleged to be partners.
(2.) AS against the order dismissing that application by the Full Court the petitioner has come here in revision, and the only point that arises is whether the Full Court had no jurisdiction to entertain the application for a rule. That question turns upon the construction to be placed on the wording of Order XXI, Rule 50, of the Civil Procedure Code, as read with Section 38 of the Presidency Small Cause Courts Act.
It has been urged on behalf of the petitioner that the lower Court was in error in holding that it had no jurisdiction because Order XXI, Rule 50, Sub-ruler (2) and (3), contemplate that where a decree-holder claimed to be entitled to execute the decree against a person who had not appeared in the suit, the Court might order that the liability of such person should be tried and determined in any manner in which any issue in a suit might be tried and determined, and that where the liability of such person has been tried and determined under Sub-Rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. It is contended that this provision read with Section 38 of the Presidency Small Cause Courts Act, which gives power to the Full Court to take cognizance of an application before it, clearly gives jurisdiction to it inasmuch as it says that where a suit has been contested, the Small Causa Court may, on the application of either party, made within eight days from the date of the decree or order in the suit. . . , order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.
In other words, the argument is that the proceedings before the Small Cause Court Judge under Order XXI, Rule 50, Sub-rule (2) and (3), were proceedings in a suit in the same sense in which the word "suit" has been used in Section 38, that these proceedings should be regarded only as a continuation of the original suit proceedings, and that even if they be regarded as proceedings in execution, still execution proceedings being a continuation of the suit, all such proceedings would fall under the scope of Section 38, with the result that the Full Court would have jurisdiction to entertain the application before it.
(3.) ON the other hand, it has been argued on behalf of the opponent that all that Order XXI, Rule 50, Sub-rule (3), says is that an order made in these proceedings is to have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree, and that, therefore, it cannot be said that this order is either an order in a suit or a decree in a suit as if it were an order or a decree, and that therefore the proceedings, although they may be in a suit, did not themselves constitute a suit with the result that Section 38 of the Presidency Small Cause Courts Act, which contemplates only a suit, cannot apply to such proceedings, although it would apply to all the previous stages which would terminate in a decree in the suit.
The question, therefore, is in what sense the word "suit" is used in Section 38, and in what sense is it enacted in Order XXI, Rule 50, Sub-rule (2) and (3), that the orders passed in such proceedings are to be considered as if they were decrees. On behalf of the opponent reliance is placed upon a ruling of this Court in Kanji v. Jivraj (1930) 32 Bom. L. R. 1009, where although an identical question, viz. as to construction of Order XXI, Rule 50, as read with Section 38 of the Presidency Small Cause Courts Act, is considered, that consideration was based upon an obiter, because the point that arose there was that a partner, who had appeared, denied that he had received any notice of the dissolution of the partnership, and therefore, was not liable. this Court considered that contention, and was of the opinion that the trial Court was right in its finding that the decree-holder was not aware of the fact of the dissolution of the firm, and as stated in the judgment itself, it was not necessary, therefore, to consider the other contention, viz. whether the application to the Full Court could be entertained, because, if the decree-holder was not aware, even though the Full Court had jurisdiction to entertain the application, still the result would be the same. The opinion was however expressed that the proceeding in which leave was applied for to execute the decree under Order XXI, Rule 50, Sub-rule (2), of the Civil Procedure Code, was not a suit within the meaning of Section 38 of the Presidency Small Cause Courts Act, and that opinion was based upon the view that such a proceeding was in the nature of a subsidiary application after the decree was passed and before the decree could be executed against the partner against whom the application was made; the mere fact that the order in such proceedings was to be considered as if it were a decree did not invest such proceedings with the character of a suit, and that, therefore, Section 38 of the Presidency Small Cause Courts Act did not apply; reliance was placed for that view on the case of Venkata Chandrappa Nayanivaru v. Venkatarama Reddi (1898) I. L. R. 22 Mad. 256.;