Improper service of summons on a partnership does not invalidate a decree but is an irregularity that can be cured under S. 99 of the CPC.

1 The 3rd Defendant is the appellant. The suit is for money due under a chitty hypothecation bond Ext. A dated 26-8-1106 executed by the 1st defendant in favour of the foreman who were Puthenpurakkal Varki Thommi and Vazhapallil Poulose Kuruvila. The 1st defendant prized the ticket on 1-3-1106 at the seventh drawing and drew the amount. He defaulted to pay the subscriptions thereafter. In Thulam 1106, there was an Udampady between the two foremen and their children. By this Udampady one of the foremen Poulose Kuruvila and the son of the other foreman, Thommi Varghese, were authorised to realise the outstandings or assign the same in favour of others for money due to them. Accordingly the plaintiff was given the assignment of the rights under Ext. A by Ext. C dated 2-5-1119. The plaintiff stated that he came to know that in execution of the decree in OS 642 of 1108 of the Alleppey Munsiff's Court, the Keralavilasom Bank impleaded in this case as the 2nd defendant had purchased the rights under Ext. A bond, that the said decree and the execution proceedings were invalid and not binding on the foremen mainly because the foremen were not impleaded in the above suit, that the said decree was obtained against P. Thomas and company which had been a concern different from that which conducted the chitty, that even if P. Thomas and Company were connected with the chitty, the decree would not be binding on them since the partners in that firm were not impleaded in that suit, that Thommi Varghese who was impleaded in that case was not competent to represent P. Thomas and Company as he had no control or management of the present concern and that the summons in that case was returned unnerved. The suit was therefore for a declaration that the decree and execution proceedings in OS 642 of 1108 would not be binding on the foremen of the chitty and for recovery of 25200 fanams with interest.

2 Defendants 2 and 3 had filed written statements in the case. Their main contentions were that the decree in OS 642 of 1108 of the Alleppey Munsiff's Court was validly obtained against the 1st defendant and P. Thomas and Company of which the partners were Varki Thommi and Poulose Kuruvila, that the foremen of the chitty were the partners in the said firm, that in execution of this decree which is Ext. 13 in the case, the rights under the plaint hypothecation bond as well as the plaint properties were purchased by the 2nd defendant, that Thommi Varghese the son of one of the partners was in management and control of P. Thomas and Company at the relevant time, that the decree was properly obtained and was binding on the partners of the firm, that Ext. C assignment relied on by the plaintiff was executed by Thommi Varghese and others in favour of the plaintiff who is the son in law of Thommi Varghese without any consideration, that it was invalid as at the time of the assignment, the foremen had no subsisting right over Ext. A and that the decree and the execution proceeding in Ex. XIII case were not liable to be set aside.

3 The 2nd defendant which went into liquidation had purchased the right under the chitty hypothecation bond and also the 1st defendant's right to the equity of redemption in execution of Ext. 13 case. Thus the 2nd defendant was the full owner thereof, and this right was sold in auction by the liquidator and purchased by the 3rd defendant. He had obtained delivery of possession of the properties. In addition to this the 3rd defendant contended that the suit was barred by limitation.

4 The plaintiff filed a replication where it was stated that P. Thomas and Company had nothing to do with the chitty concern except what is contained in clause 24 of the chitty Variola authorising Thommi Varghese the son of Varki Thommi one of the partners to attend to all the affairs in the chitty and apart from this Thommi Varghese had no right to the chitty assets. Since the chitty foremen were not defendants in OS 642 of 1108, neither the plaintiffs nor the 3