TMI Blog1965 (3) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ide finance to the firm, as a result of the dealings under the agreement a sum of ₹ 1,96,831.58 N.P. was due to respondent No. 1 from the firm, and in view of the breaches of the agreement by the firm, the agreement has 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 installments, and the Court passed a decree for ₹ 1,89,643.98 N.P and further interest, and directed that the decretal amount would be payable in certain installments. The firm committed defaults in payment of the installments payable under the decree. On December 13, 1957, respondent No. 1 filed an application under O. 21 r. 50(2) of the Code of Civil Procedure for leave to execute the decree against (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 87-B 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), Code of Civil Procedure was not maintainable; and (3) the appellants were entitled to dispute their liability in an application under O. 21, r. 50(2) of the Code of Civil Procedure on all the grounds raised in the affidavit filed on their behalf and the court ought to have tried and decided all those questions. 4. In answer to the first contention of Mr. D. N. Mukherjee, Mr. Andley argued that for the purposes of a suit under O. 30. Code of Civil Procedure, the firm of Jagatsons International Corporation is a legal ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hottam Umedbhai Co. v. M/s. Manilal Sons [1961]1SCR982 . So also a suit against the firm is really a suit against all the partners of the firm. In Western National Bank of City of New York v. Perez, Triana Co. [1891] 1 Q.B. 304, Lindley, L.J. said : When a firm's name is used, it is only a convenient method of denoting those persons who compose the firm at the time when that name is used, and a plaintiff who sues partners in the name of their firm in truth sues them individually, just as much as if he had set out all their names . 5. The decree passed in the suit, though in form against the firm, is in effect a decree against all the partners. In Lovell Christmas v. Beauchamp [1894] A.C. 607 Lord Herschell, L.C. said : Although the judgment may be pronounced against the firm in the firm's name, it is in reality a judgment against all the persons who are in fact members of the firm; and it is because such a judgment exists that the right of execution follows . 6. The firm name of Jagatsons International Corporation applies as much to the Maharaja of Sirmur as to the other partners. When respondent No. 1 sued the firm of Jagatsons International Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment could be suitably amended so as to make it a judgment against the firm other than the infant partner. The precise point decided in this case cannot arise in this country, because under our law, a minor may not be a partner in a firm, though he may be admitted to the benefits of the partnership. But the case shows that a creditor of a firm of which one of the partners cannot be adjudged to be a debtor, may institute a suit against a firm in the firm name under O. 30 of the Code of Civil Procedure, and may in such a suit obtain a decree against the firm other than the partner who cannot be adjudged a debtor. Again, take a case where the creditor of a firm institutes a suit against a firm and one of its partners at the time of the accrual of the cause of action is dead at the time of the institution of the suit. The suit against the firm is really a suit against all the partners who were its partners at the time of the accrual of the cause of action, including the dead partner. Order 30, R. 4 of a Code of Civil Procedure enables the creditor to institute the suit against the firm in the firm name without joining the legal representative of the deceased partner. The suit is, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure. It is true that respondent No. 1 obtained a decree against the firm of Jagatsons International Corporation simply, but the decree should be suitably amended so as to make it a decree against the firm of Jagatsons International Corporation other than the Maharaja of Sirmur, and the decree so read is a valid decree which may be executed against the partnership property and the other partners of the firm by recourse to the machinery of O. 21, r. 50 of the Code of Civil Procedure. The application of respondent No. 1 under O. 21, r. 50(2) for leave to execute the decree against the other partners is, therefore maintainable. The second contention of Mr. Mukherjee must, therefore, be rejected. 9. The third contention of Mr. Mukherjee raises the question as to what defences may be raised by a respondent to an application under O. 21, r. 50(2) of the Code of Civil Procedure. The law on this point is now well-settled. In Gambhir Mal Pandiya v. J.K. Jute Mills Co. Ltd., Kanpur [1963]2SCR190 , Hidayatullah, J. speaking on behalf of the Court observed : .... primarily the question to try would be whether the persona against whom the decree is sought to be executed was a partner of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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