1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.814 OF 2005 IN SUMMONS FOR JUDGMENT NO.100 OF 2004 IN SUMMARY SUIT NO.4082 OF 2003 Suresh Gublachand Patel. ...Appellant vs. 1.Ramnik Pasu Gala & others. ...Respondents --- Mr.N.N.Vaishnawa with R.D.Dave i/b. M/s.N.N.Vaishnawa & Co., for Appellant. Mr.N.C.Parikh i/b. M/s.Mansukhlal Hiralal & Co., for Respondent no.1. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. 2 DATED: 26th March,2009. P.C.:- 1. By this appeal, the appellant challenges the order passed by the learned Single Judge of this Court in Summons for Judgment no.100 of 2004 in Summary Suit no.4082 of 2003. That summary suit was filed by the present respondent no.1 claiming money decree against the respondent no.2 M/s.Patel Corporation which is a partnership firm of which defendant no.2 Bhika Gulabchand Patel and the present appellant Suresh G.Patel were the partners. The defendants on being served with the writ of summons, filed their appearance. Therefore, summons for judgment has been taken out. However, defendant nos. 1 and 2 did not file any reply and did not contest the summons for judgment. Only defendant no.3 filed reply. The summons for judgment was decided by order dated 20.1.2005. The Court disposed of the Summons for Judgment noting that defendant nos. 1 and 2 are not contesting the summons for judgment and they have not put up any defence. The Court considered the 3 defence put up by defendant no.3 and has held that the defence is merely a moonshine defence, and therefore, the defendant no.3 is not entitled to any leave to defend, as a result of which the suit was decreed. 2. The present appeal is filed by defendant no.3 against that order. It is an admitted position before us that decree in terms of prayer clause of the suit has already been passed against defendant nos.1 and 2. It is an admitted position before us that at the time of suit transaction the defendant no.3 who is the present appellant was also a partner of the defendant no.1 firm. Therefore, defendant no.3-the present appellant would be liable under the decree that is passed against the defendant no.1-firm and which has neither been challenged by the defendant no.1 nor by the defendant no.3-the present appellant. 3. In our opinion, therefore, as the decree is passed against the defendant no.1 firm of which admittedly the defendant no.3-the present appellant 4 was the partner at the relevant time, and as there is no challenge to that decree, it is immaterial whether the decree is passed against the defendant no.3 separately or not. It was possible for defendant no.3 as he was a partner of defendant no.1 firm at the relevant time, to contest the summons for judgment on behalf of defendant no.1 also, but he has chosen not to do so. Obviously, therefore, neither the defendant no.2 nor the defendant no.3 could have challenged the decree that is passed against defendant no.1 which is a partnership firm, and therefore, in accordance with the provisions of the Civil Procedure Code, the decree passed against the defendant no.1 is executable against the defendant no.3, whether the decree is passed separately against the defendant no.3 or not. Therefore, in our opinion, considering this appeal on merits will not serve any useful purpose. 4. The matter was heard by us yesterday and we had indicated clearly to the learned Counsel appearing for appellant that in view of the fact that the defendant no.3 has not contested the summons for 5 judgment which was taken out against defendant no.1- firm of which defendant no.3 was a partner, his filing this appeal is a futile exercise. The learned Counsel therefore, sought time to take instructions whether defendant no.3 wants to withdraw the appeal. Therefore, the appeal has been kept today on board for withdrawal, but instead of withdrawing the appeal, the learned Counsel tried to argue the matter and pointed out the provisions of the Civil Procedure Code which empowers the Appellate Court even to pass an order against the parties who have not filed the appeal. In our opinion, even if that power is available to the Court and can be invoked by the appellant, it should have been done when the appeal was heard yesterday and not after the hearing of the appeal was concluded and the matter is kept on board merely as a matter of indulgence for withdrawal because the learned Counsel appearing for appellant stated that he wants to take instructions for withdrawal. In our opinion, the course of conduct adopted by the learned Counsel is not fair. In our opinion, allowing the lawyers to adopt such course of conduct will not be in the interest of justice, it 6 will discourage the Court from showing indulgence to the lawyers and postponing passing of orders. In our opinion, even assuming that Appeal Court can pass an order in favour of a party who has not filed an appeal, that power cannot be used in this case because the defendant no.1 has not contested the summons for judgment. Therefore, even if the defendant no.1 had filed an appeal that appeal could not have been entertained by the Court. 2. Taking overall view of the matter, therefore, it is clear that there is no substance in the appeal. Appeal is dismissed with costs. In view of the peculiar circumstances of this case, the appellant is directed to pay cost of this appeal to the plaintiff. The cost is quantified at Rs.25,000/-. The amount that has been deposited pursuant to the interim orders of the Court by the appellant, be not permitted to be withdrawn by the appellant for a period of 12 weeks from today. Thereafter, the disposal of the amount shall be governed by the order that may be passed by the executing Court. 7 (D.K.DESHMUKH, J.) (A.A.SAYED,J.) ---