A partner can execute a decree obtained by the firm even if the firm is dissolved, provided that the firm has not been wound up.

1. A decree was obtained by name Messrs. Vasavi and Company, a registered partnership firm.

2. It is not disputed that one of the partners of the firm was adjudicated insolvent. After the decree was obtained, petitioner herein filed execution petition for recovering the amount due from the judgment-debtor. It is not disputed that the petitioner who filed the execution petition is the Managing Partner, though he has not described himself as partner of the firm. When the execution petition was filed, objection was taken that the firm was not in existence and had become defunct. He also put forward a contention that the petitioner herein is not entitled to execute the decree.

3. By the impugned order, court below dismissed the execution petition, against which this Revision is filed

4. The question is how far the present petitioner is competent to execute the decree.

5. Section 34 of the Indian Partnership Act says that when a partner in a firm is adjudicated insolvent, he ceases to be a partner on the date on which the order of adjudication is made, whether or not the firm is thereby dissolved. Sub-sec. (2) says thus:

“Where under a contract between the partners the firm is not dissolved by the adjudication of a partner as an insolvent, the estate of a partner so adjudicated is not liable for any act of the insolvent, done after the date on which the order of adjudication is made.”

A reading of the said Section shows that unless there is a contract to the contrary, on the adjudication of a partner as insolvent, the partnership is dissolved. In this case, the deed of partnership is not filed and the contract to the contrary is not proved. Therefore, the normal presumption that the partnership is dissolved has to be taken. Section 47 of the Indian Partnership Act says thus:

“47. Continuing authority of partners for purposes of winding up. -After the dissolution of a firm the authority of each partner to bind the firm, and the other mutual rights and obligations of the partners, continue notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the firm and to complete transactions begun but unfinished at the time of the dissolution, but not otherwise;

Provided that the firm is in no case bound by the acts of a partner who has been adjudicated insolvent; but this Proviso does not affect the liability of any person who has after the adjudication presented himself or knowingly permitted himself to be represented as partner of the insolvent.”

So, even after dissolution, authority of each partner will continue till the firm is wound up. Nobody has got a case that the firm has been wound up in accordance with the Act.

6. It is admitted that the execution petition was filed not by the firm, but by the petitioner, who is a partner, though he has not described himself as such. But, under Section 18 of the said Act, he is an agent of the firm and he is also an agent of the other partners.

7. Order 30 of the Code of Civil Procedure enables a firm to institute a suit. Legally, a firm is not a legal person. It is only a collective or compendious name for all the partners. If a suit is filed on behalf of the firm, the law presumes that the suit instituted by all the partners. Likewise, if a decree is obtained against a firm, law presumes that the decree is against all the partners. They need not be impleaded or named individually.

8. In A.I.R. 1961 SC 325 ( Purushottam & Co. v. Manilal & Sons ), in paragraph 8 it has been held thus:

”Where a suit is filed in the name of a firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not authorized the suit. A firm may not be legal entity in the sense of a corporation or a company incorporated under the Indian Companies Act but it is still an existing concern where business is done by a number of persons in partnership. When a suit is filed in the name of a firm it is in reality a suit by all the partners of the firm. Order