Bachawat, J. - (1.) Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheb a Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm name and style of M/s. Jagatsons International Corporation on (hereinafter referred to as the firm) at New Delhi. Respondent No. 1, Ramnarain (Private).Ltd. instituted summary Suit No. 162 of 1957 against M/s. Jagatsons International Corporation on the original Side of the Bombay High Court claiming a money decree for Rs.1,96,831.58 nP. The suit was instituted on the allegation that respondent No. 1 and the firm had entered into an agreement in writing dated September 26, 1956, whereby respondent No. 1 agreed to provide finance to the firm; as a result of the dealings under the agreement a sum of Rs.1,96,831.58 nP. was due to respondent No. 1 from the firm, and in view of the breaches of the agreement by the firm, the agreement had stood terminated. The consent of the Central Government to the institution of the suit was not obtained, though the Maharaja of Sirmur is a Ruler of the former Indian State within the meaning of S. 87B of the Code of Civil Procedure. The summons of the suit was served on Shib Chander Kumar as a partner of the firm and as a person having the control or management of the partnership business. on July 15, 1957, at the hearing of the summons for judgment taken out by respondent No. 1, the firm admitted its liability as claimed in the plaint and applied for instalments, and the Court passed a decree for Rs. 1,89,643.98 nP. and further interest, and directed that the decretal amount would be payable in certain instalments. The firm committed defaults in payment of the instalments payable under the decree. on December 13, 1957, respondent No. 1 filed an application under 0.21, R.50 (2) of the Code of,Civil Procedure for leave to execute the decree against (1) Maharani Mandalsa Kumari Debi (2) Maharani Premlata Debi, (3) Maiyan Sahiba Sheba Kumari Debi, (4) Major Rao Raja Sirendra Singh, (5) Jagat Pershad (6) Praduman Kumar and (7) Dayawati Rani claiming that respondent No. 1 was entitled to cause the decree to be executed against them at being partners in the firm. The opposite parties to the application filed no affidavit alleging (1) that the suit and all proceedings therein were incompetent in the absence of the requisite consent of the Central Government under S. 86 of the Code of Civil Procedure; (2) Jagat Pershad and Shib Chinder Kumar entered into the agreement dated September 26, 1951 and utilised the moneys received under it in fraud of the other partners and without their authority, Shib Chander Kumar dishonestly and fraudulently concealed from the other partners the fact of the institution of the suit and without the authority and knowledge of the other partners submitted to a consent decree in the suit.
(2.) By an order dated March 18, 1958, a learned single Judge of the High Court rejected all the contentions in the affidavit, and allowed the application under O.21, R.50(2) of the Code of Civil Procedure. The learned single Judge held that (1) the defect of the absence of the requisite consent under S.86 read with S. 878 did not render the decree a nullity, and the objection could not be taken in execution proceedings; (2) the other defences to the merits of the claim in the suit could not be agitated in a proceeding under O. 21, R. 50 (20 of the Code of Civil Procedure. An appeal preferred by appellants, Maharani Mandalsa Kumari Debi, Maharani Premlata Debi, Major Rao Raja Sirendra Singh and Maiyan Sahiba Sheba Kumari Debi was dismissed by a Bench of the High Court on November 21,,1958. The appellate Court held that (1) though the decree against the firm was a decree against all its partners including the Maharaja of Sirmur, and though the decree against the Maharaja of Sirmur might be a nullity, the decree against the other partners of the firm was valid, and (2) the appellants were not entitled to raise other defences to the merits of the claim on an application under O.21, R.50 (2) of the Code of Civil Procedure. The appellants now appeal to this Court under a certificate granted by the High Court.
(3.) On behalf of the appellants, Mr. D. N. Mukherjee contended that (1) the suit against the firm of Jagatsons International Corporation was a suit against all its partners, and in the absence of the requisite consent under S. 86 read with S. 87B of the Code of Civil Procedure, the suit was not competent against the Maharaja of Sirmur, and the decree against him was null and void; (2) consequently, the suit against the firm under the provisions of O. 30 of the Code of Civil Procedure was not competent and the decree passed in the suit was wholly void, the decree not being a decree against the firm could not be executed by recourse to the machinery of O. 21, R. 50 Code of Civil Procedure and the application against the appellants under O. 21, R. 50 (2), was not maintainable:and (3) the appellants were entitled to dispute their liability in an application under O. 21, R. 50 (2) on all the grounds raised in the affidavit filed on their, behalf and the Court ought to have tried and decided all those questions.;