GAJENDRA NARAIN SINGH versus JOHRI MAL PRAHLAD RAI

Citation: [1963] SUPP. 2 S.C.R. 30 · Decided: 13-11-1962 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

Judgment (excerpt)

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 implied-
ly 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 de-
fendant 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 defen-
dant 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 direc-
ted 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 Nov

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