# SUPREME COURT REPORTS [1963) SUPP. GAJENDRA NARAIN SINGH v. JOHRI MAL PRAHLAD RAI

- **Citation:** [1963] Supp. 2 S.C.R. 30
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** P. B. Ga.Jendragadkar, K. N. Wa:'<Choo, K. C. Das GUPTA, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1963-supp-gajendra-narain-singh-v-johri-mal-prahlad-rai-2772
- **Pages:** 9

## Headnote

E.~er,ution-Partnership firm-Summons
on
individual
·pa.rtner-Mainta.inability-Omle of Civil ProooJ.ure 1908 (Act
V of 1908), Or. 30, rr. 6, 7; Or. 21, r. 50.
The respondent-plaintiff sued the firm of M/s. Tirhut
Umbrella Works in the Bombay City Civil Court for a decree
for Rs. 20,320/·. The summor.s h the suit was served on
the appellant as a partner of the firm.
The appellant appeared
in the Civil Court through an advocate without protest and
obtained an adjournment for filing a written statement. Later
the advocate sought leave to withdraw the appearance on the
ground that the appellant was not a partner of the firm but the
application was rejected by the court which proceeded to try the
suit ex-parte and decreed it as prayed for.
The decree was
transferred for ex~cution to the District Court, Patna, where
the respondent first applied for leave to execute the decree
against the appellant but later wanted to proceed with the
execution without leave. The District Court held that the
'
appellant was not a partner and that as the City Civil Court
had not decided that question, it was open to the executing
court to decide it. On appeal, the High Court reversed the
order and directed the execution to proceed against the appellant.
Held, that on the evidence on record and in view of the
appellant not h"ving produced the original summons served
upon him it must be held proved that the appellant had been
served a< a partner· of the firm and had appeared under rr. 6
and 7 of Or. 30 of the Code of Civil Procedure. The District
Court by refusing leave to withdraw on the ground that the .-.
appellant was not a partner the City Civil Court had impliedly decided that
the
appellant was a partner and there not
having been any appeal against that decision, the order was
final and the decree could be executed against the appellant
under Or. 21, r. 50 Civil Procedure Code.

## Text

1962
Nounnbtr, 13.
30
SUPREME COURT REPORTS [1963) SUPP.
GAJENDRA NARAIN SINGH
v.
JOHRI MAL PRAHLAD RAI
(P. B. GA.JENDRAGADKAR, K. N. WA:'<CHOO,
K. C. Das GUPTA and J. C. SHAH, JJ.)
E.~er,ution-Partnership firm-Summons
on
individual
·pa.rtner-Mainta.inability-Omle of Civil ProooJ.ure 1908 (Act
V of 1908), Or. 30, rr. 6, 7; Or. 21, r. 50.
The respondent-plaintiff sued the firm of M/s. Tirhut
Umbrella Works in the Bombay City Civil Court for a decree
for Rs. 20,320/·. The summor.s h the suit was served on
the appellant as a partner of the firm.
The appellant appeared
in the Civil Court through an advocate without protest and
obtained an adjournment for filing a written statement. Later
the advocate sought leave to withdraw the appearance on the
ground that the appellant was not a partner of the firm but the
application was rejected by the court which proceeded to try the
suit ex-parte and decreed it as prayed for.
The decree was
transferred for ex~cution to the District Court, Patna, where
the respondent first applied for leave to execute the decree
against the appellant but later wanted to proceed with the
execution without leave. The District Court held that the
'
appellant was not a partner and that as the City Civil Court
had not decided that question, it was open to the executing
court to decide it. On appeal, the High Court reversed the
order and directed the execution to proceed against the appellant.
Held, that on the evidence on record and in view of the
appellant not h"ving produced the original summons served
upon him it must be held proved that the appellant had been
served a< a partner· of the firm and had appeared under rr. 6
and 7 of Or. 30 of the Code of Civil Procedure. The District
Court by refusing leave to withdraw on the ground that the .-.
appellant was not a partner the City Civil Court had impliedly decided that
the
appellant was a partner and there not
having been any appeal against that decision, the order was
final and the decree could be executed against the appellant
under Or. 21, r. 50 Civil Procedure Code.
CIVIL APPELLATE jURISDICTION : Civil Appeal
No. 268 of 1960.
2 S.C.R.
SUPREME COURT REPORTS
31
Appeal from the judgment and order dated
September 5, 11)58, of the Patna High Court in Misc.
Appeal No. 252/55.
A. V. Viswanatha Sastri, Yogeslvwar Prasad and
U. P. Singh, for the appellant.
G. S. Path4k, Rameshwar Nath and S. N.
Andley, for the respondents.
1962. November 13. The Judgment of the
Court was delivered by
SHAH, J.-M/s. Johri Mal Prahald Rai-herein·
after referred to as 'the plaintiffs'-commenced an
action against M/s. Tirhut Umbrella Works (a firm
carrying on business at Laheriasarai in the State of
Bihar) in the City Civil Court, Bombay, for a decree
for Rs. 20,320/- with costs and interest. Summons
of the suit was served upon one Gajendra Narain
Singh-hereinafter referred to as 'Singh'-at Road
8, R Block at Patna (Bihar) as a partner of the defendant firm.
Mr. D. B. Tilak an advocate who was
engaged by Singh, filed on April 22, 1953 in the.Court
a V1;klllatnama signed by Singh authorising him to
act, appear and plead in the suit. A chamber summons
for directions for trial of the suit as a commercial
cause was thereafter served on Singh. On September 9,
1953 Mr. Tilak a~ advocate for Singh addressed a
letter Jo the Attorneys of the plaintiffs requesting
them to consent to an "adjournment of the x x x
suit'' to enable Singh "to file his· written statement."
By consent of the advocates the chamber summons
for directions stood fldjourned by order of the Court
for a fortnight. When the chamber summons for
directions was taken up for hearing on September 24,
1953 Mr. Tilak informed the Court that his client
Singh claimed that he was not a partner of the defendant firm, and orally prayed for an order permitting
withdrawal of the appearance filed in Court. The
Court declined to accede to the oral request and directed that appropriate proceedings to withdraw the
1962
Gajendra Na,.;.
Siogh
v.
Johri Mal
Prahlad Ral
Shah, J.
1962
Gajtnd,a JVflrai.1
Singh
y,
Jo/iri Mal
P1ahlad Roi
Skoh, J.
32
SUPREME COURT REPORTS [1963] SUPP.
appearance may, if so advised, be taken by Singh.
The Court directed that the suit be transferred to the
list of commercial causes and gave directions for the
progress of the suit. When the suit was taken up for
hearing before the City Civil Court on November 27,
1953 Mr. Tilak again appeared and submitted that
his client on whom summons was served in the suit,
was not a partner of the defendant firm and prayed
that he be allowed to withdraw the appearance which
was filed without protest. The Court rejected the
application for leave to withdraw the appearance and
also rejected the application of Mr. Tilak for an
adjournment of the suit. Mr. Tilak then withdrew
from the suit with leave of the Court, and the suit
was heard ex parte. The Court recorded the evidence
of a witness for the plaintiffs and admitted certain
correspondence tendered by the plaintiffs, and decreed
the suit as prayed.
The decree was forwarded by the Registrar of
the City Civil Court, Bombay to the Court of the
District Judge, Patna, with a certificate of non-satisfaction. The plaintiffs then applied for leave to
execute the decree against Singh under O. 21. rule
50(2) of the Code of Civil Procedure. Singh contended that he was not a partner of the defendant firm
and that he was not liable to satisfy the dt>bts of that
firm ; that he was not
served with summons
in the suit; that he had appeared in the suit in
which the decree was
passed not as a partner,
but in his individual capacity; and that he had in:
formed the Court that he was not a partner of the
defendant firm.
The plaintiffs then applied for
--.
execution of the decree claiming that no order of the
Court granting leave to execute the decree was necessary. The District Judge, Patna, by his order dated
May 12, 1955 held that the execution could not be
directed against Singh relying upon sub-clauses (b)
or(c)ofrule50, 0, 21, for the question whether he was
a partner of the defendant firm was left undecided by
2 S.C.R.
SUPREME COURT REPORTS
33
the City Civil Court. The learned District Judge
further held on the evidence that Singh was not a
partner of the defendant firm.
In appeal against the order of the District Judge
rejecting the· application for execution against Singh,
the High Court at Patna I:~ 1d that on the facts proved
the plaintiffs were entitled as of right to execute thedecree under 0. 21 rule 50(l)(b) against Singh. The
High Court accordingly reversed the order . passed by
the District.Judge and directed execution to proceed
against Singh. With certificate under Art. 133(1 )(a)
granted by the High Court, this appeal has been preferred by Singh.
Order 30 of the Code of Civil Procedure deals
with the manner in which suits may be filed by or
against firms.
Two or more persons carrying on
business in India may be sued in the name of the firm
of which they were partners at the time of the accrual
of the cause of action. Where a suit has been filed
against the firm summons may be served in the
manner prescribed by rule 3. That rule, in so far as
it is material, provides-
''Where persons are sued as partners in the
name of their firm, the summons shall. be served
either-
(a) upon any one or more of the partners, or
(b) at the principal place at which the partnership business is carried on within India,
upon any person having, at the time of
service, the control or management of the
partnership business there,
as the Court may ·direct; and such service shall
be deemed good service upon the firm so sued,
whether all or any of the partners are within or
without India :
Provided
x
x
x
"
l!la
G•j,.lr• N•oi•
s1.,h
v.
Jolori M•I
PrlltlH R•i
Sul,/,
1112
ffl•"" }{,, ••
......
v.
4dri M•I
,,a"Al•tl Rfl;
.\Wi. J.
34'
SUPREME COURT REPORTS (11163] SUPP.
The plaintiffs had sued the partners of M/s. Tirbut
Umbrella Works in the firm name, and the summqns
was served on Singh at Road 8, R Block, Patna .
The original summons would normally be with Singh
but he did not care to produce it before the District
Judge, Patna. The High Court on a review of the
circumstances arrived at the conclusion that Singh
was served with summons of the suit as a partner of the defendant firm.
That conclusion is amply
supported by the evidence, and the presumption
which arises under rule 5 of 0. 30 which proyides :
"Where a summons is issued to a firm and is
served in the manner provided by rule 3, every
person upon whom it is served shall be informed
by notice in writing given at the time of such
service, whether he is served as a partner or as
a person having the control or management of
the partnership business, or in both characters,
and, in default of such notice, the person served
shall be deemed to be served as a partner."
It is not possible to say whether the summons was
accompanied by the notice contemplated by rule 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
~ith a summons in the suit, and Mr.
Vishwauath Sastri appearing for Singh has fairly uor
challenged the finding that Singh must be deemed to
have been served as a partner of the defendant fir'll.
Rule 8 of 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;
2 s;c.R.
SUPREME COURT REPORTS
35
1962
serving a summons on the firm and obtaining
decree against the firm in default of appearance
where no partner has appeared."
Gojmtlra Narain
Sin1A
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
rule 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 0. 21 rule 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 rule 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. ·
In the present case Singh did not enter appearance under protest. He filed an a~pearance ~n his
individua1 name in the suit, and obtamed 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 part11~r of the defendant firm and applied for. leave
to withdraw his appearance which was filed without
Y.
J°"'i Mal
Prafllod &i
-
SAaA, J.
1962
Go}-• Naolll
Sin1h
...
Jallri Mal
P.UW &i
S.Wi, J.
36
SUPREME COURT REPORTS [1963] SUPP.
protest. Unless the Court permitted S~h to withdraw the appearance initially filed, it continued to be
an appearance under rule 6 of 0. XXXon 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 rule 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
.. .
2 S.C.R.
SUPREME COURT REPORTS 1
3.7
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-clauses (b) and (c) of subrule (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 rule
6 or rule 7 of.Order XXX. Singh being a person
who had after being served as a partner appeared
under rule 6, the decree of the City Civil Court,
Bombay was executable against him.
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 per·
son referred to in els. (b) and (c) of sub-rule (1) of
r. 50 0. 21,.but that p_roceeding was plainly the result
of an incorrect appreciation of the t1·ue position in
law. On that account his right under 0. 21 rule
50 (1) (b) was not lost. The plaintiffs were entitled
to abandon the application for leave under sub-rule
(2) and to execute the decree under sub-rule (1).
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 rule 6 0. 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
1962
C.jadra N•rli•
Sio1A
v.
Jellr; M•l
PrMt.d Roi
Sluzh, J.
1962
Cajtnt!ro NMoin
Si,, git
v.
Jolr.ri Mal
Pralo/od Rai
Shah, J.
1962
Jitovtmlm, J!J.
38
SUPREME COURT REPORTS (1963] SUPP.
again>t the firm was by virtue of sub-rule (l)cl. (b) of
rule 50 0. 21, liable to be executed against Singh.
The High Court was thorefore, in our judgment
right in directing eKecution of the decree of the City
Civil Court, Bombay, against Singh. The appeal
fails and is dismissed with costs.
A pper1l dism isserl.
MAULUD AHMAD
v.
STATE OF UTTAR PRADESH
(S. J. IMAM, K. SuBnA RAO and
J. R. MuDHOLKAR, JJ.)
Criminal Trial-Framing incorrect record-Head Conslablemalcing false entry to save ""other ierson-Arquittal of !he other
person-Conviction
of Head
Constable,
if smtainableLimitation-Prosec,.tion
after 3
months
of
~ffence-lj'
barred-Indian Penal Code, 1860 (Act XLV of 1860), s 218l'olice Act, 1861 (V of 1861), '"· 36, 42.
C and some other persons \Vent on a shoot with gt111s
where two persons were shot dead. In ordrr to create evidence
in his favour C got a faJ.e report entered by the appellant,
a Head constable, in the General Diary purporting to have
been made on the previous day to the effect that C had
deposited his gun. C and the appellant and the others were
tried for
various offences including offences under ss. 304~.1\
and 218/!09 Indian Penal Code.
All the accussed were acquittrd but the appellant was convicted under s, 218. The appellant contended (i) that after the acquittal of C, his conviction
under s. 218 could not be sustained and (ii) that the prosecution having been launched n1ore than three months after the
entry was 1narle w:i,s h&rred by limit.1tion t111def s. 42 Pol ice
Act.