Judgment - Chagla, C.J.

1. A very interesting question relating to the law of insolvency arises in this appeal. The appellant firm was dissolved on 19-12-1951. The respondent company filed a suit against the appellant firm and obtained a decree on 14-11-1952. The appellant firm consists of several partners, but in the suit filed by the respondent company only one partner was served) viz. Bhagwatiprasad, and he appeared in answer to the summons. On 10-12-1952, the respondent company took out an insolvency notice addressed to the firm calling upon the firm to pay the judgment debt within the time specified in that notice. The appellant firm took out a notice of motion on 8-1-1953, to set aside the insolvency notice. The learned Insolvency Judge dismissed the notice of motion) and it is from that order that this appeal is preferred.

2. The contention of the respondent company is that it has obtained a decree against the appellant firm, that the insolvency notice is addressed to the appellant firm, that there is an obligation upon the appellant firm to satisfy the judgment debt, and that the insolvency notice is in proper form, and the learned Judge below was right in dismissing the notice of motion to set aside the insolvency notice. As against this what is contended on behalf of the appellant firm is that the decree which was obtained by the respondent company could only be executed against the partner Bhagwati prasad who had been served, it could not be executed against the other partners, and to the extent that the insolvency, notice was addressed to all the partners which constituted the firm the insolvency notice is bad. Now, the position that arises in respect of a decree passed against a firm under the Civil Procedure Code is not and cannot be disputed. Partners can be sued in the firm name under Order 30 and Order 30 provides how service is to be effected. Certain consequences follow upon all the partners of a firm not being served and those consequences are set out in Order 21, Rule 50. Sub-rule (1) of that rule provides that a decree can be executed, which has been passed against a firm, against the property of the partnership and against any person who has appeared in his own name under Rule 6 or Rule 7 of Order 30 or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner, and against any person who has been individually served as a partner with a summons and has failed to appear. There is no dispute that the only person who falls under clause (b) or clause (c) of Order 21, Rule 50(1), is Bhagwatiprasad, and no other partner can fall under either of these two clauses. Then Sub-rule (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."

Therefore, in cases of partners who have not been served, the decree cannot be executed against them without leave of the Court, and what is even more important is that it is open to these partners to dispute their liability under the decree, and if they so dispute their liability, their liability has to be determined as if it was an issue in the suit itself. Therefore, looking to these provisions it is clear that the decree which the respondent company obtained against the appellant firm on 14-11-1952, could not have been executed against any partner other than Bhagwatiprasad. It is equally clear that the insolvency notice which has been taken out by the respondent company calls upon not only Bhagwatiprasad but all the partners to satisfy the judgment debt. The notice is addres

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