( 1 ) THIS is a civil revision application arising out of an application given under Order 21, Rule 50 (2), C. P. C. , on behalf of J. K. Jute Mills Company Limited.

( 2 ) THE facts giving rise to this application may be briefly stated as follows :-There was a contract between J. K. Jute Mills Company Limited as sellers and Messrs. Bridhi chand Sumermal (hereinafter called the firm) as purchasers. Clause 25 of the said contract provided for settlement of disputes between the parties to the said contract by arbitration. The authority nominated to give the award was the Merchants Chamber of Commerce, Kanpur. The firm Bridhi Chand Sumermal consisted of only two members as partners: one of them was Seth tikam Chand, and the other was Seth Gambhir Mal Pandiya. The above contract between J. K. Jute Mills Company Limited and the firm was signed by only one of the partners, namely, Seth tikam Chand. A dispute between the parties to the contract having arisen, it was, according to the terms of the contract, referred to the Merchants Chamber of Commerce, Kanpur, for arbitration. The arbitrators gave their award on 8-1-1947. The award was filed in Court. Seth Tikam Chand appeared and contested the said award on behalf of the firm. The award was, however, made a rule of the Court, and incorporated in a decree dated 7-1-1949. Seth Tikam Chand took up the matter in appeal, but was unsuccessful.

( 3 ) ON the decree-holders taking out execution against the firm, it was discovered that the judgment-debtor had closed his business, and that there were no assets of the firm available for the satisfaction of the decree. Thereafter, the decree-holder moved an application under Order 21, Rule 50 (2), C. P. C. , for permission to proceed against Seth Gambhirmal Pandiya, the other partner of the firm. It may be mentioned that no summons of the proceedings prior to that had been served on Seth Gambhirmal Pandiya, nor had he taken any part in the proceedings of the case before that stage.

( 4 ) SETH Gambhirmal Pandiya appeared in response to the notice to show cause, and filed his objection on 24-5-1952. He stated that he was never served in the proceedings relating to the arbitration and award. He further objected that the other partner had no authority to enter into arbitration agreement on behalf of the firm. Consequently, there was no valid award, and he was not liable to be proceeded against. It may, however, be noted that he admitted his status as one of the partners of the firm.

( 5 ) THE execution Court held that Gambhirmal Pandiyas status as a partner having been established, he could not be allowed to challenge the decree on merits. It, accordingly, allowed the application of the decree-holder for permission to proceed against Seth Gambhirmal Pandiya for the satisfaction of the decree.

( 6 ) DISSATISFIED with the said order, Seth Gambhirmal Pandiya has filed this revision application in the High Court.

( 7 ) A preliminary objection relating to the maintainability of this application was raised on behalf of the opposite party on the ground that the order of the execution Court under Order 21, Rule 50 (2), C. P. C. , is appealable under Order 21, Rule 50 (3), C. P. C. Order 21, Rule 50, C. P. C. , provided as follows :-

"50. (1) Where a decree has been passed against a firm execution may be granted - (a) against any property of the partnership; (b) against any person who has appeared in his own name under Rule 6 or Rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be a partner; (c) against any person who has been individually served as a partner with a summons and has failed to appear: provided that nothing In this sub-rule shall be deemed to limit or otherwise affect the provisions of Section 247 of the Indian Contract Act, 1872.

(2) 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),