MAHARANI MANDALSA KUMARI DEVI Vs. M RAMNARAIN PRIVATE LTD

JUDGEMENT

(1.) THIS is an appeal from a judgment of Mr. Justice Shelat oh a chamber summons under Order XXI, r. 50 (2) and the order appealed against is one granting leave to the decreeholder to proceed in execution against certain persons as partners in the firm of Messrs. Jagatsons International Corporation. In that firm there were several partners including the Maharaja of Sirmoor, a principality in Himachal Pradesh. There is no dispute that the Government of India had recognised the Maharaja of Sirmoor as a ruler entitled to the privileges under section 86 of the Civil Procedure Code. The plaintiffs, who are respondent No. 1 before us, filed a suit against that firm to recover a sum of Rs. 1,96,831. 58 np. The suit was filed as a summary suit and the plaintiffs took out a summons for judgment. The writ of the summons was served only upon the Manager of the firm and upon one of the partners, Shib Chunder Kumar, who is respondent No. 5 to the appeal. At the hearing of the summons for judgment, the firm was represented by attorneys and counsel and submitted to a decree as prayed and applied for liberty to pay the decretal amount in certain instalments, which application was granted. The firm failed to pay the instalments and the plaintiffs took out a chamber summons, out of which arises this appeal, for liberty to execute the decree against the 7 individual partners (other than the Maharaja of Sirmoor) mentioned in the summons. Those 7 persons were admittedly partners in the defendant firm at all material times. Various contentions were raised before Mr. Justice Shelat, who negatived them. We shall only examine those contentions which are pressed before us by Mr. Singh, learned counsel for the appellants. The learned Judge, as we have already mentioned, made the summons absolute and four of the partners have now come to this Court in appeal.

(2.) IT has been argued firstly that the decree passed on the summons for Judgment and which was a consent decree was a nullity and if it was a nullity, it was competent to the executing Court to go into that contention and decline to grant any execution against the partners against whom execution of the decree was sought to be enforced by the chamber summons. The argument is that one of the partners in the firm of the judgment-debtors being a ruling prince, no valid decree could be passed against the firm of which he was a partner without the consent of the Central Government certified in writing as required by section 86 of the Civil Procedure Code. Section 86 of the Civil Procedure Code has to be read with section 87b which applies the principle of immunity to foreign Rulers to the Rulers of former Indian States. Now, the argument here is that no suit can be filed against a firm if one of the partners in that firm is a Ruler of a former Indian State, and if a suit is filed against a firm in which one of the partners is a ruler of a former Indian State, the suit is not maintainable and if a decree were to be passed in that suit that decree would be a nullity. Another step of the argument is that a decree against a Ruler of a former Indian State without the requisite consent of the Central Government before the institution of the suit is a nullity. We agree with Mr. Singh when he says that a decree passed against a Ruler of a former Indian State without the requisite consent of the Central Government would be a nullity. Section 9 and 86 of the Civil Procedure Code have in this context to beread together and by doing so it must follow that a Court has no inherent jurisdiction to entertain a suit against a person to whom section 86 applies. It can only do so if the requisite consent of the Central Government is obtained before the institution of the suit. The provisions contained in section 86, it is well established are imperative and a decree passed by a Court without the requisite certificate would be by a Court which has no jurisdiction at all to entertain the suit. It would be a case of the total absence of competence and the decree would be a nullity. But that is not the real difficulty of Mr. Singh in this case. The real difficulty of Mr. Singh is when he asks us to accept the proposition that a decree passed against a firm in which one of the partners is a Ruler of a former Indian State would be a nullity if the consent of the Central Government was not obtained to the filing of the suit against him. The suggestion is that a suit against a firm in the name of the firm is as much a suit against every partner of the firm, including the partner who is a Ruler of a former Indian State. So far we are in agreement with Mr. Singh. A suit against a firm is a suit against all the partners of the firm and a fortiori it is a suit against one of those partners who is a Ruler of a former Indian State. But it is not possible for us to accede to the argument that a decree against a firm in which one of the partners happens to be a Ruler of a former Indian State is a nullity if the suit was filed without the requisite certificate.

(3.) GREATEST reliance has been placed by Mr. Singh on a decision of Chagla C. J. in a Civil Revision Application decided by His Lordship sitting alone reported in Dulerai and Co. v. Pokerdas Mengraj, ILR 1953 Bom 237: (AIR 1952 Bom 335 ). We would like to preface our observations on that case by drawing attention to the- very peculiar nature of the application which the learned Chief Justice had to consider. In the firm of Dulerai and Co. there were four partners, one of whom was the Maharaja of Orchha, a ruler of the former Indian State of Orchha. The respondents to the Revision Application were Messrs. Pokerdas Meghraj and they filed a suit in the City Civil Court, Bombay, against the firm of Dulerai and Co. in the name of that firm to recover a sum of Rs. 5000/ -. The defendants filed their appearance under protest and informed the plaintiffs that as the Maharaja of Orchha was one of the partners and as the requisite consent of the Central Government under Sec. 87b read with Sec. 86 to file the suit against the Maharaja had not been obtained, the suit was not maintainable. The plain-tiffs thereupon took out a chamber summons asking that the appearance under protest be removed. The chamber summons was heard by the Principal. Judge of the City Civil Court, who held that as the suit was filed against the firm in the firm name and not against the partners in their individual names, secs. 86 and 87b had no application. He made the summons absolute and the Civil Revision Application was against that order. What the learned Chief Justice had to decide, and in fact decided, was that the learned Principal Judge of the City Civil Court was in error in dismissing the chamber summons. The effect of the judgment was that the appearance under protest was to remain on the record of the suit and the City Civil Court was directed to try the issue as to whether the Maharaja of Orchha was a partner in the defendant firm. It is in that context that certain observations seem to have been made in the judgment in that case. Read out of context, those observations may lend support to the argument pressed before us by Mr. Singh. But we are not prepared to read those observations as laying down the proposition which Mr. Singh has contended for before us. But as we have already observed, those observations are to be read in their proper context bearing in mind the real point which had to be decided and what we are concerned with is the ratio of that decision. We do not think that the correct ratio of that decision is that a suit can in no circumstances be filed against a firm in which a ruler of a former Indian State is a partner. Of course, if the question arises as to whether a ruler of a former Indian State is a partner in a firm, then it would be necessary for the Court to determine that point and that is what seems to us to have been decided in that case. But we do not think we should read that decision as laying down the wide general proposition pressed for our acceptance by Mr. Singh,