A decree against a firm cannot be enforced against a partner who has not been served with the summons or who has not admitted that he is a partner, unless leave of the Court is obtained under Order XXI, Rule 50(2) of the Civil Procedure Code.

JUDGMENT - Chagla, C.J.

1. Messrs. Amarchand Mangaldas acted as attorneys for the firm of Messrs. Chunilal Murliprasad in certain litigation, and they obtained a pay order against their clients on December 8, 1939. This pay order has the same effect as a decree; under the rules of this Court a solicitor is entitled to resort to summary procedure to have his bill of costs taxed against his client and to get the Judge in Chambers to pass an order directing payment against his client. Messrs. Amarchand Mangaldas having resorted to the summary procedure obtained this order as already pointed out on December 8, 1939.

On December 16, 1943, Messrs. Amarchand Mangaldas applied under Order XXI, Rule 50 of the Civil Procedure Code, for adjudication that Ram-nath Goenka was a partner in the firm of Messrs. Chunilal Murliprasad. This application became necessary as Ramnath Goenka had neither been served with the pay order, nor had his liability as a partner of the firm been adjudicated in those proceedings.

2. An issue was tried whether Ramnath Goenka was a partner or not. The trial Court held that he was not a partner. There was an appeal against that decision, and the Court of Appeal held on August 12, 1952, that Ramnath Goenka was a partner of the firm, and gave leave to Messrs. Amarchand Mangaldas to execute the pay order against him. Pursuant to this order Messrs. Amarchand Mangaldas applied for execution of the pay order on October 3, 1952. The matter came on before Mr. Justice Coyajee; and the learned Judge held that Messrs. Amarchand Mangaldas were entitled to proceed with the execution. From that order this appeal is preferred by Ramnath Goenka.

3. The only point which has been urged before us by Mr. M. V. Desai on behalf of the appellant is that the decree or the order of December 8, 1939, is barred by limitation, and that it is not competent for Messrs. Amarchand Mangaldas to apply to execute that decree.

4. Now, the article that applies is Article 183 of the Indian Limitation Act. That Article provides a period of limitation of twelve years when the application is to enforce the judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction, and the time from which the limitation begins to run is when a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right; and a further period of limitation is started it the the judgment, decree or order is revived.

5. The contention of Mr. M. V. Desai is that inasmuch as the decree was passed on December S, 1939, and the application for execution was made 12 years thereafter on October 3, 1952, the right to enforce the decree is barred by Article 183. It has been urged by Mr. Desai that the application to execute the decree under Order XXI, Rule 50, made on December 16, 1943, cannot operate as a revivor under Article 183, and, therefore, there was no application made by the judgment-creditors which could prevent the limitation running as provided for by Article 183.

In our opinion, Mr. Desai seems to be right on the authorities that a mere order made by an executing Court granting leave under Order XXI, Rule 50, cannot act as a revivor. It is not--to use the language of the Privy Council in -- Raja of Ramnad v. Velusami Tevar, AIR 1921 PC 23 (A)--a positive order. It is not an order which adjudicates upon the executability of the decree.

In this particular case it was sought to be argued before the Court of Appeal that the application for execution would be barred, if it was made on the date when the Court of Appeal granted leave under Order XXI, Rule 50; and, therefore, it was attempted to be contended that the Court could not grant leave, and in the judgment the Court of Appeal expressly declined to deal with the question, whether the enforceability of the pay order dated December 8, 1939, was barred by limitation or not. Therefore, all that the Court of Appeal did

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