Patna High Court
R.J. Mohammed Yakub Saheb vs Dipa Sahu Deoki Prasad And Ors. on 22 August, 1958
Equivalent citations: AIR1959PAT200, 1958(6)BLJR724, AIR 1959 PATNA 200
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT
1. This appeal is brought on behalf of the decree-holder against the order of the Subordinate Judge of Darbhanga dated the 31st May, 1-954, holding in the first place that the decree was a nullity and could not be executed because one of the judgment-debtors, Kishorilal Sahu, had died about eight months before the hearing of the suit and his legal representatives were not brought on the record of the case. The learned Subordinate Judge, held in the second place that the defendant firm was not registered under the Indian Partnership Act and so could not be treated as a legal entity and no decree could be passed against the firm "Dipa Sahu Deoki Prasad" impleaded as a defendant. In taking this view the learned Subordinate Judge relied upon a decision, Bhawarjit Chetri v. Kedarmal Banarsilal, AIR 1954 Assam 111.
2. In support of this appeal Mr. G. C. Mukharji pointed out, in the first place, that the view taken by the learned Subordinate Judge is erroneous on both the points. It was argued that the decree was properly granted in favour of the decree-holder against the joint family trading firm called "Dipa Sahu Deoki Prasad". We think that this argument is correct. For it is well settled in a series of authorities that in the case of a joint Hindu family trading firm the provisions of Order 30, Rule 10, Code of Civil Procedure, apply.
It was pointed out in those cases that though there is no contractual partnership between the members of the Hindu undivided family carrying on the family business as such, still for the purpose of Order 30, Rule 10, the Hindu joint family business can be sued in its firm name under the provisions of Order 30 Rule 10. In other words, the name of the joint family trading firm is only a compemdious name for all the members of the joint family who have joined the business as partners. Provisions of Order 30, Rule 10, are to the following effect:--
"10. Suit against person carrying on business in name other than his own--Any person carrying on business in name or style other than his own name may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules under this order shall apply".
It is to be observed that this rule does not enable a person carrying on business in a name or style either than his own to sue in that name as a plaintiff. All that it provides is that he can be sued in that name as a defendant, the reason being that persons who deal with him in his assumed name should not be debarred from, suing him in that name, because ha has assumed that name in dealing with them. That view expressed by Venkatasubba Rao, J. in Chidambaram Chettiar v. National City Bank of New York ILR 1937 Mad 28: (AIR 1936 Mad 707) and that view has been followed by a Division Bench of this High Court consisting of Fazl Ali and Varma, JJ., in Alekh Chandra v. Krishna Chandra, AIR 1941 Pat 596.
It was held in that case that Order 30, Rule 10, will apply not only to a single individual but also apply to a case where more persons than one carry on a business in an assumed name, though strictly speaking they are not partners. It was further held in that case that the provisions of Order 21, Rule 50, must be read along with the rules of Order 30, and, therefore, the procedure under Order 21, Rule 50, Code of Civil Procedure would apply to the execution of a decree against a joint Hindu, family trading firm.
The view expressed by the Division Bench of the Patna High Court in AIR 1941 Pat 596 has been followed by the Calcutta High Court in Jamunadhar Poddar Firm v. Jamunaram Bhakat, AIR 1944 Cal 138. The same view has been taken by the Orissa High Court in Harishankar Lath v. General Merchants Ltd., AIR 1956 Orissa 186.
The position in law, therefore, is that a Hindu joint family trading concern, though not a firm in the legal sense, may be sued in its assumed name of the business under the provisions of Order 30, Rule 10, Code of Civil Procedure, but such a Hindu joint family trading concern cannot sue as a plaintiff in the firm name under the provisions of Order 30, Rule 1. Such a suit must be brought either by the Karta of the family or by all the members of the joint family who are coparceners. This is the view taken in AIR 1954 Assam 111 and in Lakhan Sao v. Firm Kani Ram Bhagwan Das AIR 1938 Pat 270.
That view is certainly correct and these cases are quite consistent with the view taken by the Division Bench of this Court in AIR 1941 Pat 598 which was a case brought against a Hindu joint family concern as a defendant. We are, therefore, of opinion that in the present case the view of law taken by the learned Subordinate Judge is erroneous and must be overruled. It is manifest that the decree was properly taken by the plaintiff against the Hindu family trading firm carrying on business in the name of "Dina Sahu Deoki Prasad" and also against the joint family members concerned in that business, namely, Mukundlal Sahu, Ramdayal Sahu and Ramnarayan Sahu.
It is true that the decree was also taken against Kishorilal Sahu, but there is evidence that Kishorilal Sahu died on the 27th January, 1951 before the hearing of the money suit commenced. The learned Subordinate Judge is however wrong in holding that the effect of the death of Kishorilal Sahu was to make the whole decree a nullity. The only result would be that the decree-holder cannot execute the decree against the heirs of Kishorilal Sahu unless proceedings are taken out under Order 21, Rule 50 Code of Civil Procedure.
As a decree stands at present it is a good decree and it can be executed against the firm "Dipa Sahu Deoki Prasad" and also against the members of the joint family business who were impleaded in the suit, namely, Mukundlal Sahu, Ramdayal Sahu and Ramnarayan Sahu, It is however, open to the decree holder to take recourse to the procedure under Order 21 Rule 50 Code of Civil Procedure, which applies in our opinion, to the execution of the decree which is the subject-matter of execution in the present case. For these reasons we allow this appeal, set aside the order of the learned Subordinate Judge of Darbbanga, dated the 31st May, 1954, and hold that the decree is executable, as against "Dina Sahu Deoki Prasad" and against Mukundlal Sahu, Ramdayal Sahu and Ramnarayan Sahu.
3. The appeal is accordingly allowed with costs.