P L D 1968 Karachi 47 (PLP)

Monsoorul Arfin for Appellant. S. M. Hafeez and Percy Dingomal Ramchandani for Respon dents. Dates of hearing : 10th and 11th January 1967. WAHIDUDDIN AHMED, J.‑This is an appeal from the judg ment of a learned singe Judge of this Court in Suit No. 1217 of 1954 on an application made under Order XXI, rule 50(2), C. P. C. dated 20th February 1963 holding that the respon dent firm was dissolved on the appointment of Chaudhury Khaliquzzaman to the governorship of East Pakistan on 31st March 1953, that is at a date prior to the filing of the said suit and that Capt. M. Karim Siddiqui was at no time a partner of the said firm. The learned Judge further held that as the above‑mentioned two partners were not impleaded as parties to the suit they could not be burdened with the liability of the decretal amount.

2. The brief facts leading to this appeal are that the respondent firm opened a cash credit account with the appellant Bank on 19th December 1951. A sum of Rs. 68,491‑15‑10 was due to the appellant bank from the respondent firm for the recovery of which the above‑mentioned suit was filed in the Chief Court of Sind on 1st December 1954. One of the partners of the firm Chaudhury Atiquzzaman appeared on behalf of the respondent firm and. filed the written statement on 10th September 1956. The suit however was decreed ex pane on 1st October 1956.

3. On 1st September. 1958 the appellant bank filed an application under Order XXI, rule 50(2), C. P. C. for permission to execute the decree against the partners of the firm including Chaudhury Khaliquzzaman and Capt. M. Karim Siddiqui. After recording the evidence of both the parties the learned single Judge dismissed the application on the ground that the res pondent firm stood dissolved within the knowledge of the appellant bank on 21st March 1953 and, therefore, it was necessary for them to implead all the partners whom they wanted to make liable for the decretal amount as parties to the suit. As this was not done, the Executing Court refused permission to the appellant bank for executing the decree against the partners who were contesting their liability. The appel lant bank has challenged this Order in this Letters Patent Appeal.

4. Mr. S. M. Hafiz and Mr. Percy Dingomal Ramchandani, the learned counsel for the respondent and the partners, have raised a preliminary objection that the partners against whom the above application was made have not been impleaded as respondents to the appeal and the appeal, for this reason, is defective and liable to be dismissed. In this connection, the learned counsel has referred to the memo. of appeal from which it is quite clear that only the partnership firm has been impleaded as respondent. So far as , the partners of the firm are concerned a prayer in the following words has been made in the memo. of appeal:‑ "For these reasons the appellant humbly prays that this Hon'ble Court may be pleased to set aside the judgment and order dated 20‑2‑63 of the learned Judge, grant leave to execute the decree against M/s. Chaudhury Khaliquzzaman, Chaudhury Rafiquzzaman and Capt. Karim Siddiqui, partners of the respondent and order execution of the decree against the said partners and further to grant costs of the appeal." It will thus be noticed that none of the partners in whose favour the above‑mentioned order was passed has been impleaded as parties to the appeal, although relief has been claimed against them in the memo. of appeal.

5. In reply Mr. Mansoorul Arfin, the learned Counsel for the appellant, has contended that notices were issued to all the partners about the institution of the appeal and they have put in appearance to defend the appeal. He, therefore, contended that in view of the prayer made in the memo. of appeal they should be considered to have been impleaded as parties to the appeal. He. has further contended that, in the circumstances of the present case, the Court should exercise its discretion under Order XLI, rule 20, C. P. C.

6. In order to appreciate the contention of the parties it is necessary to point out that any decision by the execut ing Court on an application under Order XXI, rule 50, sub‑clause (2), C. P. C. has the same force and is subject to the same conditions as to appeal or otherwise as if it were a decree. This is perfectly clear from the provisions of Order XXI, rule 50, sub‑clauses (2) and (3) reproduced below:

"50(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), clauses (b) (c) as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. (3) Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree." In view of sub‑clause (3) of the above provision of law a right of appeal is given against an order passed under Order XXI, rule 50(2) to the aggrieved party in the same way as a right of appeal is available against a decree passed in the suit. Thus the order passed under Order XXI, rule 50, sub‑clause (2) is a decree and has to be challenged or attacked in the same manner as a decree is to be attacked and challenged. In the present case, the learned single Judge has exonerated the partners of the respondent partnership firm who were not made parties to the suit or who did not appear in the suit as partners of the respondent firm from their liability to pay the decretal amount: Thus these partners had acquired a valuable right in their favour. It was therefore necessary for the appellant to implead the partners against whom they want to execute the decree as parties to the appeal and arrayed them as respondents. But unfortunately the appellant bank did not implead them as parties or as respondents to the appeal under consideration. They have only impleaded the respondent firm as party to the appeal. It is not disputed that against the partners the right of appeal had become barred and therefore there should be very strong reasons for this Court to exercise its discretion under Order LXI, rule 20,'C. P. C.

7. The contention of Mr. Mansoorul Arfin that the partners had been impleaded as parties to the appeal because a relief was claimed against them in the grounds of appeal and notices have been issued to them under Order XXX, rule 3, C. P. C. is not well founded. Any relief claimed against the partners of the firm without impleading them as parties to the appeal has no vital effect on the right of the partners. It is quite correct that notices were issued to the partners of the firm under Order XXX, rule 3, C. P. C., but Mr. Mansoorul Arfin was unable to satisfy us that the pro visions of Order XXX; role 3, C. P. C. are applicable to an appeal filed against an order passed on an application under Order XXI, rule 50, sub‑clause (2), C. P. C. The provisions of Order XXX, rule 3, C. P. C. are only applicable to suits and to no other proceedings. As already pointed out, any order passed under Order XXI, rule 50(2), C. P. C. is to be deemed to be a decree and the provisions of appeal are applicable to it in the same way as are applicable to a decree passed by a Court in the suit. A reference to Order XXX, rule 3, C. P. C. makes it perfectly clear that its provisions are not applicable to an appeal filed against a partnership firm or against the partners of the partnership firm. There is, therefore, little doubt that the appellant should have impleaded the partners in whose favour the order was passed by the learned single Judge as respondents to the present appeal. Since the appellant has failed to do so there is no appeal against the partners of the firm to whom the appellant bank wants to make liable for the payment of the decretal amount. In fact, the appeal for this reason is defective because no effective relief can be granted to the appellant against the partners to whom the appellant bank wants to make liable for the payment of the decree passed in their favour.

8. The' next contention of the learned counsel that this Court should exercise its discretion under Order XLI, rule 20, C. P. C. has also no force. It is a well established rule of law that this provision should be exercised very cautiously because a person in whose favour the lower Court has passed a decree against which an appeal is not filed within period of limitation has a substantive right of a valuable kind which should not be lightly treated. In the case of Labu Ram and others v. Ram Partap and others (A I R 1944 Lah. 76) a Full Bench of the Lahore High Court has held that when once time for an appeal has run out, it is not possible for an appellant subsequently to implead those defendants who were not originally impleaded as respondents in the appeal. Mr. Mansoorul Arfin has referred to a decision in Girish Chander Lahiri v. Sasi Sekhareswar Roy (I L R 33 Cal. 329) in which it was held that the Limitation Act does not contract the power of the Court under Order XLI, rule 20 .to allow persons who were parties to the proceedings in the Court below, but were not made respondents at the time when the appeal was presented to, be added as respondents. On the other hand, Mr. Hafiz as relied on a decision of the Baghdad ul‑Jadid High Court in the case of Qazi Mehar Din v. Mst. Murad Begum and others (P L D 1951 B J 1) and an Indian decision Raman Lal v. Shanti Lal (A I R 1961 All. 178). The last mentioned case is more in point. In that case the objections of the judgment‑debtor that the house was not liable to attachment and sale, he being an agriculturist, were dismissed after contest by the decree holder and the auction‑purchaser who were parties to this application. The judgment‑debtor appealed impleading only the decree holder as respondent. The auction purchaser was sought to be added as a party respondent after the expiry of limitation. It was held by a learned single Judge of the Allahabad High Court that the prayer for adding the auction purchaser as party respondent could not be allowed as no good case for allowing it had been made out.

8. It' seems to us that in the present case the appeal is defective in form inasmuch as the partners who are vitally interested in the case and in whose favour Order under XXI, rule 50 was passed are not impleaded in the appeal and in their absence it is not possible to pass any order which will adversely affect their interest. To such cases the provision of Order XLI, rule 20 cannot be applied. The fault for not impleading the partners in the appeal is on the appellant bank and no redress can be granted to them for omission to implead the necessary parties to the appeal under the above provisions of law. We, therefore, find that the preliminary objection raised on behalf of the respondent and the counsel for the partners is fatal to the maintainability of the appeal. We would, therefore, bold that, as the appellants have failed to implead the necessary parties, to the appeal, no effective relief can be granted and the appeal is liable to be dismissed for this reason. Accordingly, the appeal is dismissed. Respondents have not claimed any costs. A. H. Appeal dismissed.