Judgment

HIDAYATULLAH, J.: This is an appeal on a certificate granted by the High Court of Allahabad against an order dated September 25, 1957 dismissing a revision petition field by the present appellant.

2. The facts of the case are very simple Messrs. J. K. Jute Mills Co. Ltd., ( the answering respondents) entered into a contract with a firm, Messrs Birdhi Chand Sumer Mal, for the supply of certain articles. The contract was entered into by one Seth Tikam Chand, a partner in the firm. One of the terms of the contract was that in a case of a dispute between the parties, it would be referred to the Merchants Chamber of Commerce, Kanpur, for arbitration. It appears that a dispute arose, which was referred to the Chamber of Commerce, and an award in favour of the Mills was given on January 8, 1947. Two years later, the award was made into a rule of the Court, and a decree, followed in favour of the Mills. The firm of Birdhi Chand Sumer Mal consisted of two partners; the other partner was one Mr. Pandiya, the predecessor-in-interest of Seth Gambir Mal Pandiya the appellant. In execution of the decree passed against the firm, the Mills wished to proceed against the personal property of Mr. Pandiya, and field an application for the leave of the Court under O.21, R. 50(2) of the Code of Civil Procedure. In answer to the notice which was issued, the appellant Seth Gambir Mal Pandiya, appeared and raised objections. He contended that he had not been served in the proceedings relating to the arbitration; nor of the making and the filing of the award in Court. He also contended that Seth Tikam Chand, who had signed the contract containing the arbitration clause with the Mills, had no authority to enter into an agreement containing such a clause or to refer the dispute to arbitration on behalf of the other partner. He, therefore, maintained that the award was not binding on him.

3. The contentions of the appellant were not accepted by the First Civil Judge, Kanpur, who allowed the application of the Mills and granted them leave under the rule. The appellant then filed an application for revision in the High Court of Allahabad, which was heard by C. B. Agarwala and Beg. JJ. Agarwala, J. held that although the decree passed against the firm was to be deemed to have been passed against all the individual partners thereof, it was binding proprio vigore only against the partnership property and personally against those persons who are mentioned in cls. (b) and (c) of R. 50(1), O.21, and that the decree was not binding against the appellant, who had not been served in the suit and would be binding only when a summons was served upon him to appear under sub-r (2) and his liability was determined. The reason given by the learned Judge was that a person who was not served in the suit could question his personal liability under the decree, even though he admitted himself to be a partner, upon any ground which was open to him if he had been served in the suit, and that such a person could raise the objection that as the decree was the result of an award which was based upon an agreement of reference to arbitration to which he was not a party, he was not personally liable under the decree. Beg J., on the other hand, held that inasmuch as the appellant admitted that he was a partner in the firm of Birdhi Chand Sumer Mal, he was not entitled to raise any objection either to the contract or the reference to arbitration or the award. The learned Judges having disagreed about the interpretation to be placed on sub-r (2) of R. 50, the case was laid before Mukherji, J. He agreed with the conclusion of Beg. J. and in accordance with his opinion. the application for revision was dismissed. The Divisional Bench, however certified the case as fit for appeal to this Court, and the present appeal has been filed.

4. Order 21 R.50 of the Code of Civil Procedure reads as follows :-

"50. (1) Where a decree has been passed against a firm, execution may be granted -

(a) ag