P L D 1964 Dacca 158 (PLP)

HASAN, J.‑On 24th of May 1946, the plaintiff obtained an ex parte decree in Money Suit No. 6 of 1945 against the Joint Agent, I. G. N. and R. S. N. Company Limited, Bhairab Bazar (defendant No. 3) ; put the decree into execution, and on 10th of January 1949, properties described in Schedules 1 and 2 of the present suit were attached in the execution proceeding. On 15th of January 1949, defendants Nos. 1 and 2 of the present suit filed an application under Order XXI, rule 58 of the Code of Civil Procedure which was registered as Miscellaneous Case No. 7 of 1949. On 10th of June 1950, the executing Court released the pro perty from attachment on the finding that defendants Nos. 1 and 2 were strangers to the decree and were in possession of the disput ed property in their own right. After the aforesaid order of the executing Court the plaintiff filed the present suit under Order XXI, rule 63 of the Code of Civil Procedure for establishing his right ; to have the properties attached and sold in execution of the money decree.

2. Defendants Nos. 1 and 2 contested the suit alleging inter alia that the decree obtained against the Joint Agent, I. G. N. and R. S. N. Company Limited is not executable against their pro perties described in Schedules 1 and 2 of the plaint.

3. The trial Court dismissed the suit holding that the decree in Money Suit No. 6 of 1945 was not obtained against defendants Nos. 1 and 2, but against defendant No.

3. Hence the present appeal by the plaintiff.

4. It appears from Exh. H, a certified copy of the decree in Money Suit No. 6 of 1945 that defendant No. 3 in that suit was the Joint Agent of I. G. N. and R. S. N. Company Limited, Bhairab Bazar, and from Exh. F, the certified copy of the order sheet the names of defendants Nos. 1, 2, 4 and 5 of that money suit were struck off on 17th of May 1946, on the prayer of the plaintiff, and consequently, the suit was decreed ex parte against defendant No. 3 of that suit who is also defendant No. 3 of the present suit.

5. It is admitted that defendants Nos. 1 and 2 of the present suit are registered companies under section 277 (1) of the Com panies Act, 1913, under the name and style India General Naviga tion and Railway Company Limited, 4, Fairlie Place, Calcutta, India, and Rivers Steam Navigation Company Limited, 2, Fairlie Place, Calcutta, India, respectively. After the establishment of Pakistan the same names and styles have been used by these two companies in their Pakistan registration, vide Exh. A (13). The two companies are distinct and separate and they have their respec tive Managing Agents. Messrs Kilburn & Company Limited is the Managing Agents of India General Navigation and Railway Company Limited, and Messrs Macneil & Barry are the Manag ing Agents of Rivers Steam Navigation Company Limited. Order XXX of the Code of Civil Procedure provides for suits by or against firms and persons carrying on business in the names other than their own. Rule 1 of the said Order reads as follows: "Any two or more persons claiming or being liable as partners and carrying on business in British India may sue or be sued fn the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct."

6. In order to get rid of this provision, the only point that has been urged in this case is that in fact and in substance the decree in Money Suit No. 6 of 1945 though apparently was against defendant No. 3, but it was in fact and substance against defend ants Nos. 1 and

2. In support of this contention it has been argued that after the passing of the ex parte decree in Money Suit No. 6 of 1945 an application under Order IX, rule 13, Code of Civil Procedure was filed which being rejected by the trial Court an appeal was preferred in which a vakalatnama marked as Exh. 8 (A) was filed showing that defendants Nos. 1 and 2 contested the suit. It appears at the back of the said vokalatnama, Exh. 8 (A) that Rivers Steam Navigation Company Limited appear ed through their authorised agents and the Indian General Navi gation and Railway Company Limited appeared through their authorised agents Messrs Kilburn & Company Limited. Reliance bas also been placed on a certain portion in Exh. 3 and Exh.

5. Exh. 3 is .the petition which shows that the Joint Agent, R. S. N. Company and I. G. N. and Railway Company Limited, Bhairab Bazar, was the petitioner, and Mr. D. P. McIntyre signed the same as Joint Agent of R. S. N. Company and

1. G. N. and Railway Company Limited, while Exh. 5 is the certified copy of the deposition of Mr. D. P. McIntyre.

7. After going through the whole records, we are satisfied that the descriptions of defendant No. 3 in the Money Suit No. 6 of 1945 was a wrong description and not a mere mis-description, and the documents relied on by the learned Advocate‑General do not go to show that in substance, and in fact defendants Nos. 1 and 2 were sued. The money suit was decreed ex parte against defendant No. 3, and as such, there could not be any material in the money suit from which it can be said with certainty that defendants Nos. 1 to 3 appeared and contested the suit through the joint Agent.

8. Lastly, it has been contended that under section 151, Civil Procedure Code, we can remove the anomalies created in Money Suit No. 6 of 1945 for the ends of justice. In our opinion, as the present suit is not the continuation of Money Suit No. 6 of 1945 but an independent suit under Order XXI, rule 63, Civil Procedure Code, we cannot, under section 151, Civil Procedure Code, rectify or amend the ex pane decree passed in Money Suit No. 6 of 1945. The plaintiff could have filed an application for amendment of the plaint and decree in the said money suit. The authorities, relied on, refer to amendment in the same proceeding and not in a separate proceeding. Hence we find that there is no substance in any of the contentions of the learned Advocate‑General.

9. The appeal is accordingly dismissed with costs to respon dents Nos. 1 and 2 only. IDRIS, J.‑I agree. S. B./K. B. A. Appeal dismissed.