JUDGMENT - 1. This is a suit by a firm against another firm claiming a money decree. One Khimji Motiohai was at all material times a partner of both the plaintiffs and the defendants. This fact is admitted, and the two issues that have been raised and which I have decided to try as preliminary issues are:

"1. Whether there, are common partners in the plaintiffs and defendants firms?

2. If so, whether the suit is maintainable?"

2. The first issue by an agreement of parties will be answered in the affirmative as Khimji Motibhai was admittedly a partner or both the firms at the relevant time.

3. The question, therefore, for me to determine is whether there can be a suit by one firm against another when there is a common partner. On behalf of the plaintiffs reliance is placed on Order 30, Rule 9, Civil P. C., which is in these terms:

"This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common; but no execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just."

Now, it is quite obvious that this rule contemplates the possibility of a suit between firms having one or more partners in common, and it proceeds to state what procedure shall apply to such suits as well as what would be done in the case of execution of a decree in any such suit. The question is whether by virtue of this provision it can be said that the law that there could not be a suit between a firm End one or more of its partners and between two firms which have one or more common partners was altered. To that question, in my opinion, there can be only one answer. This rule in the Civil Procedure Code corresponds to Order 48 (A), Rule 10 of the Rules of the supreme Court in England; and both in England and in India it has been held that this rule does not alter the law as to the circumstances in which a suit lies either between a firm and one or more of its partners or between two firms haying a common partner or partners. The authority for this proposition is to be found in England in -- Meyer Co. v. Faber (No. 2), (1923) 2 Ch 421 (A), where Lord sterndale M.R. in his judgment observes after citing Order 48 (A), Rule 10 at p. 435:

"....... .That does not seem to me to alter the position as I have stated it that exists between partners in a firm. It applies the previous rules to actions between a firm and its members."

Then his Lordship deals with the previous rules and further observes (p. 435):

".......The rules do not in any way, as it seems to me, alter the substantive law as it existed before, or alter the rights which in law and in equity partners have one against the other; all they do is to provide that the procedure which is laid down in the order shall apply to actions between partners and that the firm name may be used for those actions, and other procedure may go on in those actions just as it may in other actions."

4. Turning to the Indian authorities, in --"Lakshmanan v. Nagappa, AIR 1918 Mad 167 (B), a Division Bench consisting of Abdur Rahim and Oldfield JJ. took the same view. In their judgment their Lordships observe at p. 168 (right hand column):

"........Now all that can be said is that this rule contemplates the possibility of suits between a firm and one or more of the partners therein and suits between firms having one or more partners in common. But it does not profess to lay down when, and under what circumstances, such suits would be entertained and it would not ordinarily be within the scope of the Civil Procedure Code to lay down any such proposition. The rule in question only lays down that if such suits are entertained, the procedure to be followed is that set out in the order."

The same view was taken by Macklin J. in --Chandulal v. Keshavlal, AIR 1938 Bom 246 at pp. 249, 250 (C), a

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