1. This is a proceeding under O. 21, R. 50(2) of the CPC, in which the applicant is seeking to enforce an order, made by this Court under the Companies Act, against the firm of Cooper Dave & Co., who are respondents and contributory No. 74 herein, against one Burjorji Sorabji Cooper on the ground that he is a partner in the firm of Cooper Dive & Co. The amount which has become payable under the order of this Court is in respect of call moneys due on certain shares which were allotted to the firm of Cooper Dave & Co. The company has gone into liquidation and the Official Liquidator is the applicant. It is common ground that none of the notices under Companies Act resulting in the order which is now sought to be executed against Burjorji Sorabji Cooper was served upon him. The present summons is taken out under O. 21, R. 50(2) of the CPC, and calls upon Burjorji Sorabji Cooper to show cause why the Judge's order dated 5th December 1927, should not be executed against him personally as one of the partners in the respondent firm of Cooper Dave & Co. Mr. Cooper has appeared and shown cause against the summons. It was contended on behalf of Mr. Cooper that four issues should be determined by this Court in order to ascertain whether he was liable in execution. These issues were:

“(1) Whether any firm of the name of Cooper Dave & Co. existed? (2) Whether Burjorji Sorabji Cooper was a partner in the respondent firm of Cooper Dave & Co., begin contributory No. 74? (3) Whether any of the partners of the respondent firm had any authority express or implied to apply for and purchase 1000 or any shares of the abovenamed company as mentioned in paras 1 and 2 of the said affidavit? (4) Whether the said balance sheet, the Judge's order dated 5th December 1927, and the proceedings previous thereto referred to in the affidavit of Narayan Babucharya Kale dated 1st December 1930, are binding on the said Burjorji Sorabji Cooper?”

2. Mr. Billimoria, the learned counsel for Mr. Cooper, very properly abandoned the issue 1. It would also appear that issue 4 is unnecessary and does not arise in these proceedings. It is common ground that no notices previous to this summons were served upon Mr. Cooper personally. As regards issue 2 there is no controversy that it is a proper issue to be tried. Issue 3 is in the nature of an alternative to issue 2. It invites the Court to ascertain whether any of the partners of the respondent firm had authority express or implied to apply for and purchase 1000 or any shares of the company in the firm's name. If issue 2 were answered in favour of Mr. Cooper's contention, issue 3 would not arise, for if it were held that Mr. Cooper was not a partner in the respondent firm he would not be concerned whether any of the partners in the firm had or had not authority express or implied to apply for and purchase 1,000 shares on behalf of the firm. Issue 3 could only arise if on issue 2 the Court were to hold that Mr. Cooper was a partner in the respondent firm.

3. The question I have to determine is whether it would be permissible in these execution proceedings to determine an issue of an alternative nature like issue 3. It is not alleged on behalf of Mr. Cooper that the order already obtained against the respondent firm is not binding on the firm, nor is it alleged that the admitted partners in the firm acted fraudulently or in collusion with each other against Mr. Cooper in purchasing these shares in the name of the firm. It is contended on behalf of Mr. Cooper that this is the first opportunity he has had to be heard, and is therefore in the position of a newly added defendant who is entitled to raise all possible defences, whether consistent with each other or not no doubt if Mr. Cooper had been originally served with the notices which have led to the passing of the order against the respondent firm, it would have been open to him, if so advised, to have appeared and raised both these inconsistent defences. But as the proceedings were against the respondent firm it would have been equally competent to the applicant under the provisions of O. 30, on Mr. Cooper having denied that he was a partner in the respondent firm, to treat the service of the notice on Mr. Cooper as not being binding upon the firm and to serve an admitted partner of the firm instead. In that event Mr. Cooper would have had to stand aside and could raise contentions only after the order came to be made against the firm. If there was no admitted partner or manager who could be properly served the applicant could have proceeded against Mr. Cooper and obtained a finding whether he was or was not a partner in the respondent firm. Mr. Cooper could then have contended that if it was found that he was a partner the transaction was one which was not authorized and was not within the scope of the partnership business. That being not the case now the present proceedings, in my opinion, are analogous to the proceedings where a partner, who is served as a partner, denies that he was a partner and thereupon the validity of the service of the notice or summons on him is abandoned and fresh service is effected upon an admitted partner or manager and a decree or order is obtained against the firm. Mr. Cooper in my judgment is in no better position in these execution proceedings than a partner who when originally served denied that he was a partner.

4. Order 21, R. 50(2), provides that where the liability is disputed by the alleged partner, the Court may order that the liability of such partner be tried and determined in any manner in which any issue in a suit may be tried and, determined. It is sought on behalf of Mr. Cooper to give a wide interpretation to the language of this rule. It is contended that it is open to Mr. Cooper to raise every kind of defence in these execution proceedings. O. 21, R. 50, should in my opinion, be read subject to the provisions of O. 30 which deals with suits by or against firms; O. 30, R. 8, provides that any person served with summons as a partner under R. 3 may appear under protest, denying that he is a partner, but such appearance shall not preclude the plaintiff from otherwise serving a summons on the firm and obtaining a decree against the firm in default of appearance where no partner has appeared. The provisions of O. 30 and O. 21, R. 50, of our Code are analogous to those of O. 48 of the Supreme Court Rules in England. In Davis v. Hyman & Co. (1), the Court of Appeal held that an order for an issue whether the person sought to be made liable “was or had held himself out as a partner in the defendant firm” was a proper one. Stirling, L.J, in his judgment observes (p. 856):

“As to this I would say that under the rule [O. 48a, R. 8] the question to be determined is the general on a of the liability, as a member of the firm, of the person sought to be charged, and it seems to me that an issue could, in a proper case, be so framed as to include any proper defence. He such defence is suggested in the present case.”

5. A similar case came up before the Court of Appeal in Weir & Co. v. McVicar & Co. (2), Scrutton, L.J, observes (p 133):

“A writ was issued against a firm of McVicar & Co., and served upon a Mr. Manasseh with, notice that he was served as a partner in the firm. He desired to say, first, that he was not a partner, and secondly, that, if he was mistaken in that contention, the firm was not liable. The question is whether he can take up that position. What is to happen if a person alleged to be a partner, but who is not served with the writ, disputes the fact of his partnership? If the writ has been served on other members of the firm and judgment has been recovered against the firm, O. 48a, R. 3, provides that an issue may be directed to try the question whether the alleged partner is in fact a partner or not. But it seems clear that in that issue he cannot raise the question of the liability of the firm, for if he could you might have two separate judgments on the same cause of action, the one already obtained for a specified amount in the action against the firm, and the other, for possibly a reduced amount or for nothing at all, on the trial of the issue under R. 8. The only question that can be raised on the trial of that issue is whether the person against whom execution is sought was a partner at the material time or not. But if that is the position in the case of an alleged partner who was not served with the writ, can the fact that the alleged partner was served put him in any better position? The rules provide that a person who is served as a partner may do one of two things—he may appear as a partner and defend on behalf of the firm, or he may appear under protest saying that he is not a partner, in which case the service on him cannot be utilized for the purpose of getting a judgment against the firm. Such judgment can only be got by service on the firm in another way. To my mind that involves the proposition that a person who has been served as a partner cannot both deny the partnership and at the same time claim to defend the action on behalf of the firm …. In the present case the appellant desires to introduce a procedure for which I can find no trace of justification in the rules. O. 48a, R. 8, assumes that judgment has already been obtained against the firm by proper service, and then proceeds to point out who are the persons against whom it is to be enforced. The appellant desires to invert the procedure, and to suspend the obtaining of judgment against the firm until after it has been ascertained who are the persons against whom the judgment when obtained will be enforceable. There is nothing in the rules which allows of such a proceeding….”

6. Bankes, L.J, remarks (p. 133):

“A member of a partnership on becoming a partner takes upon himself the responsibility for everything that his partners may do in the conduct of the partnership, whether it be in the ordering of goods, or failing to defend an action, or admitting however wrongly, the liability of the firm.”

7. It is clear from the judgment of the Court of Appeal in Weir & Co. v. McVicar & Co. , that if the analogy of that case is applicable to the present case, it is not open to Mr. Cooper to rely upon the alternative defence raised in issue 3. The result of allowing such a procedure might lead to an absurdity. The order already made is binding on the firm and may be executed against its assets. If the finding on issue 3 were to be in favour of Mr. Cooper, the result would be that the order already made would not operate on the assets of the firm. The defence foreshadowed in issue 3 is a common defence which all or any of the admitted partners of the firm could properly urge in favour of the firm. It cannot be said that issue 3 raises a defence which is peculiar to Mr. Cooper only. If he is a partner—and he must be presumed to know whether he was or was not a partner—the acts of his partner or partners in entering into this transaction on behalf of the firm would, in the absence of fraud or collusion proved against them, be considered binding upon him. If he had no knowledge that such a transaction had been effected in the name of the firm he could in the present proceedings have challenged the transaction as fraudulent. He does not choose to do that. He is sitting on the fence. He denies in the first instance that he is a partner. He then says if the Court holds that I am a partner I say my partners had no authority to purchase these shares. In my opinion such an alternative defence cannot be permitted in these execution proceedings having regard to the provisions of O. 30 and O. 21, R. 50.

8. Reliance is placed on behalf of Mr. Cooper on the case of Chhattoo Lal Misser & Co. v. Naraindas Baijnath Prasad (3).

9. In that case Remfry, J. permitted in execution proceedings an alleged partner against whom a decree was sought to be executed to rely upon two defences, viz.: (1) that he was not a partner in the firm, and (2) that he was a ward under the United Provinces Court of Wards Act and that hence the decree could not be executed against him personally. Remfry, J., in the course of his judgment remarks (p. 706):

“It has long since ceased to be the province of procedure to exclude defences, and it is to be presumed that no defence is excluded unless that it is the only possible construction of a rule. The common sense of the matter is that the party sought to be charged can raise any personal defence and is generally precluded from challenging the decree, though, if that were obtained by collusion and fraud, that would not bind him, for he can only be bound, if found to be a partner, by admissions made by his partners and their conduct within the scope of their authority as such.”

10. It is clear from the judgment in Chhattoo Lal Misser & Co. v. Naraindas Baijnath Prasad that the alternative defence under the United Provinces Court of Wards Act was permitted to the alleged partner in the firm only on the ground that it was a personal defence. What is sought in the present case to do is to challenge the decree passed against the firm on general grounds. In my judgment this cannot be permitted. Issue 3 is therefore disallowed. The result is that there will be a trial only on the issue

“whether Burjorji Sorabji Cooper was a partner in the respondent firm of Cooper Dave & Co., being contributory No. 74.”

B.V/R.K

11. Order accordingly.