A partnership for operating filature and carrying on silk business without getting name of plaintiff registered was not illegal under the Silk Control Order, 1945.

( 1 ) THE plaintiff appellant had filed a suit for dissolution of a partnership with defendant No. 1 and for accounts. The plaintiff alleged that defendant Habibuddin had entered with him in partnership for carrying on business in silk in the District of Nadia. In Bhadra, 1352 B. S. the two partners agreed to start a spinning and reeling factory with the profits of the original business and purchased a machine and set up 12 ghais for the working of the factory. It was agreed that each would have a moiety share in the Profits, assets and stock in trade of the factory and that on the dissolution of the partnership the partners would first of all repay back the capital contributed by each and then they would share equally the profits and the assets. The plaintiff further alleged that the management of the factory and of the business was entrusted to the defendant respondent who kept the funds and maintained accounts. The latter had refused either to pay the dues of the plaintiff appellant or to render accounts in spite of repeated demands and that he was appropriating to himself the funds and stock in trade of the business. The accounts previous to the starting of the factory were stated to have been mutually adjusted and the plaintiff prayed for accounts subsequent to that period and for the dissolution of the partnership.

( 2 ) THE defendant respondent denied that there had been any partnership agreement between the parties. In the alternative it was pleaded that even if there had been an agreement as alleged the same was illegal under the Defence of India Rules, the Partnership Act and other laws in force at the time.

( 3 ) THE learned Subordinate Judge passed a preliminary decree holding inter alia that there was a partnership as alleged by the plaintiff.

( 4 ) AN appeal was taken to this Court by defendant No. 1 (Appeal from Original Decree No. 65 of 1945 ). This Court accepted the findings of the trial Court to the effect that the partnership alleged by the plaintiff had been established and that there had been no adjustment of accounts after Agrahayan, 1352 B. Section An objection was raised on behalf of the defendant that even if it be found that there was a partnership such a partnership was illegal under the then existing laws and rules. This Court further held that there had been no proper trial so far as this alternative defence was concerned and an issue in the following form was framed and sent down to the lower Court:"is the contract of partnership illegal by virtue of the provisions of the Bengal Silk Control Order read with the Defence of India Rules? If so, is the suit maintainable?"it was directed that if this issue were answered in favour of the defendant the suit would be dismissed, but if answered in favour of the plaintiff the suit would be decreed.

( 5 ) ALTHOUGH liberty was given to the parties to adduce additional evidence neither of the Parties took advantage of the same. The learned Subordinate Judge has after remand held against the plaintiff on this point. The suit has accordingly been dismissed.

( 6 ) THE plaintiff has appealed to this Court. The only point now before us is whether the partnership which had been found by this Court to have been proved to have been formed is hit by the provisions contained in Section 23, Contract Act.

( 7 ) FOR a proper appreciation of the objection raised by the defendant which has found favour with the trial Court reference need be made to the circumstances under which the partnership in question was created and to the relevant provisions of the Bengal Silk Control Orders.

( 8 ) THE plaintiff's case in short is that while he and defendant No. 1 were carrying on a partnership business for the purchase and sale of silk they agreed to start a spinning and reeling factory. At that time silk spinning and reeling factories could be run only after obtaining license under the Control Orders to which reference will be made hereafter. It was arran