Case: Gajendra Narain Singh Vs. Johri Mal Prahlad Rai

O. 30 provides : Any person served with summons as a partner under Rule 3 may appear under protest, denying that he is a partner, but such appearance shall not preclude the plaintiff from otherwise serving a summons on the firm and obtaining decree against the firm in default of appearance where no partner has appeared. The rule enables the person served as a partner to appear under protest and to deny that he is a partner of the firm which is sued. Appearance under protest by the person sued renders the service of summons as regards the defendant firm ineffective. The plaintiff may obtain a fresh summons against the firm and serve it in the manner prescribed by O. 30 R. 3 against another person who is alleged to be a partner by the plaintiff or against the person who has the control or management of the partnership business. A decree against the defendant firm so obtained may with leave under O. 21 R. 50 (2) be executed against the firm and also against the person who had been initially served as a partner and who had appeared under protest denying that he was a partner. The plaintiff, however, is not obliged to obtain a fresh summons : he may request the Court to adjudicate upon the plea of denial raised by the person served and appearing under protest. The Court will then proceed to determine the issue raised by that plea. If the Court finds on evidence that the person served was not a partner at the material time, the suit cannot proceed, unless summons is served afresh under R. 3: if the Court holds that he was a partner, service on him will be regarded as good service on the firm and the suit will proceed against the firm. 7. In the present case Singh did not enter appearance under protest. He filed an appearance in his individual name in the suit, and obtained an adjournment from the Court to enable him to file his written statement. The appearance so filed must be deemed to be on behalf of the firm. At the hearing of the summons for directions he contended that he was not a partner of the defendant firm and applied for leave to withdraw his appearance which was filed without protest. Unless the Court permitted Singh to withdraw the appearance initially filed, it continued to be an appearance under R. 6 of O. XXX on behalf of the firm. We are not concerned in this case to decide whether the application of Singh for leave to withdraw his appearance was properly rejected. That question could only be raised in a proceeding adopted by Singh in the proper Court challenging the decision of the City Civil Court and not in the proceeding for execution of the decree. Order 21 R. 50 of the Code of Civil Procedure deals with execution of decrees against firms. By cl. (1) it is provided : Where a decree has been passed against a firm, execution may be granted- (a) against any property of the partnership; (b) against any person who has appeared in his own name under Rule 6 or Rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner; (c) against any person who has been individually served as a partner with a summons and has failed to appear. Provided x x x x. Clause (2) provides; Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c) as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. By cl. (3) it is provided : Where the liability of any 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. Manifestly relying upon sub-cls. (b) and (c) of sub-r. (1) a plaintiff who has obtained a decree against a firm may execute it against any person who has been individually served with the summons as a partner and has failed to appear and also against any person who has appeared in his own name under R. 6 or R. 7 of O. XXX. Singh being a person who had after being served as a partner appeared under R. 6, the decree of the City Civil Court, Bombay was executable against him. 8. The plaintiffs did undoubtedly make an application for leave to execute the decree against Singh on the footing that he was a person other than a person referred to in cls. (b) and (c) of sub-r. (1) of R. 50, O. 21, but that proceeding was plainly the result of an incorrect appreciation of the true position in law. On that account his right under O. 21 R. 50 (1) (b) was not lost. The plaintiffs were entitled to abandon the application for leave under sub-r. (2) and the execute the decree under sub-r. (1). 9. The record of the City Civil Court, Bombay, tendered before the District Judge clearly establishes that Singh who was served as a partner of the defendant firm filed an appearance under R. 6, O. 30 of the Code of Civil Procedure, and thereafter his application for withdrawal of appearance was rejected and the suit was decreed against the firm. This decree against the firm was, by virtue of sub-r. (1) cl. (b) of R. 50, O. 21, liable to be executed against Singh.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. It is not possible to say whether the summons was accompanied by the notice contemplated by R. 5, but it is clear by the express words of the rule that in default of such notice the person served shall be deemed to be served as a partner. Singh has in his affidavit sworn in the suit, and also in his testimony at the hearing in the execution proceeding admitted that he was served with a summons in the suit, and Mr. Viswanatha Sastri appearing for Singh has fairly not challenged the finding that Singh must be deemed to have been served as a partner of the defendant firmThe rule enables the person served as a partner to appear under protest and to deny that he is a partner of the firm which is sued. Appearance under protest by the person sued renders the service of summons as regards the defendant firm ineffective. The plaintiff may obtain a fresh summons against the firm and serve it in the manner prescribed by O. 30 R. 3 against another person who is alleged to be a partner by the plaintiff or against the person who has the control or management of the partnership business. A decree against the defendant firm so obtained may with leave under O. 21 R. 50 (2) be executed against the firm and also against the person who had been initially served as a partner and who had appeared under protest denying that he was a partner. The plaintiff, however, is not obliged to obtain a fresh summons : he may request the Court to adjudicate upon the plea of denial raised by the person served and appearing under protest. The Court will then proceed to determine the issue raised by that plea. If the Court finds on evidence that the person served was not a partner at the material time, the suit cannot proceed, unless summons is served afresh under R. 3: if the Court holds that he was a partner, service on him will be regarded as good service on the firm and the suit will proceed against the firm7. In the present case Singh did not enter appearance under protest. He filed an appearance in his individual name in the suit, and obtained an adjournment from the Court to enable him to file his written statement. The appearance so filed must be deemed to be on behalf of the firm. At the hearing of the summons for directions he contended that he was not a partner of the defendant firm and applied for leave to withdraw his appearance which was filed without protest. Unless the Court permitted Singh to withdraw the appearance initially filed, it continued to be an appearance under R. 6 of O. XXX on behalf of the firm. We are not concerned in this case to decide whether the application of Singh for leave to withdraw his appearance was properly rejected. That question could only be raised in a proceeding adopted by Singh in the proper Court challenging the decision of the City Civil Court and not in the proceeding for execution of the decree. Order 21 R. 50 of the Code of Civil Procedure deals with execution of decrees against firmsManifestly relying upon sub-cls. (b) and (c) of sub-r. (1) a plaintiff who has obtained a decree against a firm may execute it against any person who has been individually served with the summons as a partner and has failed to appear and also against any person who has appeared in his own name under R. 6 or R. 7 of O. XXX. Singh being a person who had after being served as a partner appeared under R. 6, the decree of the City Civil Court, Bombay was executable against him8. The plaintiffs did undoubtedly make an application for leave to execute the decree against Singh on the footing that he was a person other than a person referred to in cls. (b) and (c) of sub-r. (1) of R. 50, O. 21, but that proceeding was plainly the result of an incorrect appreciation of the true position in law. On that account his right under O. 21 R. 50 (1) (b) was not lost. The plaintiffs were entitled to abandon the application for leave under sub-r. (2) and the execute the decree under sub-r. (1)9. The record of the City Civil Court, Bombay, tendered before the District Judge clearly establishes that Singh who was served as a partner of the defendant firm filed an appearance under R. 6, O. 30 of the Code of Civil Procedure, and thereafter his application for withdrawal of appearance was rejected and the suit was decreed against the firm. This decree against the firm was, by virtue of sub-r. (1) cl. (b) of R. 50, O. 21, liable to be executed against Singh.