Partners are jointly liable under partnership law even if one partner acted fraudulently, unless liability is disputed and determined in court.

[1] The respondent in this appeal was the plaintiff in the main suit before the High Court. The defendant in the main suit was a legal firm known as Paul Cheah & Associates (the said firm).

[2] The appellants in this appeal were partners of the said firm.

[3] The respondent had appointed the said firm to be their solicitor to prepare the loan security documentation for a loan to one Polyidaman Sdn Bhd (Polyidaman). As a security for the loan, Polyidaman had duly executed a charge under the National Land Code over its property in favour of the respondent.

[4] However, when Polyidaman defaulted on its loan, the respondent discovered that the charge had been discharged and the property had been transferred to a third person and that the same property was now charged to CIMB Bank Bhd as a security for that 3rd person's loan. It was also discovered that the discharge document contained a forged signature of one of the responden's officers and witnessed by one Frankie Tan Lyn Seang (Frankie Tan) who was a partner of the defendant.

[5] To cut the story short, the respondent had commenced the main suit to claim for the damages caused by the defendan's negligence, fraud and breach of contract and duty of care. After a full trial, the High Court had on 30 November 2012 awarded judgment in favour of the respondent. The decision of the High Court was affirmed, on appeal by the defendant, by the Court of Appeal on 5 August 2013.

[6] It was the responden's contention that it only received the sealed judgment dated 30 November 2012 on 20 February 2014. On 10 March 2014, it received notification from the Bar Council that the defendant had ceased operation and that there were four partners of the defendant at the date of the discharge of the charge, ie on 1 November 2006.

[7] The respondent had filed an application under O 77 r 5(4) of the Rules of 2012 encl (71) to execute the judgment against all these four partners; and the application was allowed by the High Court on 26 August 2015. Hence, the appeal before us by two of the partners, the appellants in this appeal.

[8] Having perused the Record of Appeal and considered the submissions made by the learned counsel for the respective parties, by a majority decision, this appeal was dismissed with cost and the decision of the High Court was affirmed. We shall now give our reasons for dismissing the appeal. Our Grounds

[9] Before us, the learned counsel for the appellants only relied on one issue, ie O 77 r 5(5) of the Rules of 2012. It was his argument that where the partners like the appellants in this appeal had clearly disputed their liability; what the learned judge should have done was to order the issue of liability to be first tried and determined before granting any leave to execute. Especially so in this case where in the main suit, only the firm was sued and not the partners. He relied on a High Court case of Kumpolan Kemajuan Raya Sdn Bhd v. Faidz Darus , [1996] 5 MLJ 35 wherein it was, inter alia, held that the judgment taken against the firm though final on the record, was open to challenge on an application for leave to execute against the partners because pursuant to O 10 r 5(5) of the Subordinate Rules, (which was similar to O 77 r 5(5) of the Rules of the High 1980) the individual partner had a right to challenge the liability. If he did, according to that case, the Court might order that his liability be tried and determined before such leave could be granted.

[10] The learned counsel for the appellants further argued that as the personal liberties of the appellants were at sta