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Mohammadali Kunju Ahammed Kunju v. Abraham George And Others

Kerala High Court

Nov 6, 1952

Judgment

Subsequent
References

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Structured Summary of the Opinion (Govinda Pillai, J.)

Factual and Procedural Background

The suit arose from money claimed under a chitty hypothecation bond (Ex. A) dated 26-8-1106 executed by the 1st defendant in favour of foremen Puthenpurakkal Varki Thommi and Vazhapallil Poulose Kuruvila. The 1st defendant had prized the ticket and thereafter defaulted on subscriptions. By an Udampady the foremen authorised Poulose Kuruvila and Thommi Varghese (son of the other foreman) to realise or assign outstandings. The plaintiff received an assignment (Ex. C dated 2-5-1119) of rights under Ex. A.

The plaintiff contended that a decree and execution in O.S. 642 of 1108 (Alleppey Munsiff's Court) which resulted in the Keralavilasom Bank (2nd defendant here) purchasing the rights under Ex. A, was invalid and not binding on the foremen because the foremen were not impleaded and because the decree was obtained against P. Thomas & Company (allegedly different from the chitty concern), among other grounds. The plaintiff sought a declaration that the decree and execution in O.S. 642 of 1108 were not binding and recovery of 25,200 fananis with interest.

Defendants 2 and 3 filed written statements asserting the decree in O.S. 642/1108 was valid against the 1st defendant and P. Thomas & Company (of which the foremen were partners), that the 2nd defendant purchased the rights in execution, that Thommi Varghese had management control, and that the assignment to the plaintiff (Ex. C) was executed without consideration and was invalid. The 2nd defendant went into liquidation; its auction purchase of the rights was later bought by the 3rd defendant, who obtained possession and additionally pleaded limitation.

The trial court made findings including that (1) P. Thomas & Company were the foremen; (2) Thommi Varghese was in control/management when Ex. XIII decree was obtained; and (3) because no court direction was taken for service under Order XXX, R.3 CPC in Ex. XIII, the summons could not be considered validly served and the court had no jurisdiction to pass Ex. XIII decree against P. Thomas & Company (i.e., the decree was passed without jurisdiction). The trial court found the plaintiff's claim for certain subscriptions barred by limitation but granted the plaintiff a decree to release Tr. Rs. 3100 with interest. The 3rd defendant (appellant) appealed, arguing particularly the correctness of the third finding; the plaintiff filed a cross-appeal seeking additional subscriptions.

Legal Issues Presented

Whether non-observance of the requirement in Order XXX, Rule 3 of the Code of Civil Procedure (CPC) — specifically, failure to obtain a court direction as to service of summons on a firm (service on a partner or on the person in control/management) — renders a decree (Ex. XIII) a nullity for want of jurisdiction or is merely an irregularity curable under Section 99 of the CPC.
Whether, if Ex. XIII (the decree and its execution) is held valid, the assignment obtained by the plaintiff (Ex. C) gave the plaintiff any enforceable right in the chitty bond (Ex. A) or whether the decree/execution already vested rights in the purchaser and successors in interest.

Arguments of the Parties

Appellant (3rd Defendant) — Main Arguments

Challenged the trial court's third finding that Ex. XIII was without jurisdiction because the plaintiff did not obtain the mandatory direction of court under Order XXX, R.3 CPC before serving summons on the person in management; if accepted, there would be no rights left for the foremen to assign and the suit must be dismissed.
Contended the 3rd defendant purchased the rights lawfully at auction from the liquidator and obtained delivery of possession.
Also contended the suit was barred by limitation.

Plaintiff (Respondent) — Main Contentions

Argued that the decree and execution in O.S. 642/1108 were invalid and not binding on the foremen because the foremen were not impleaded, that the decree was obtained against a different concern (P. Thomas & Company), that partners or persons in management were not properly represented or impleaded, that summons in that case was returned unserved, and hence the decree was not binding on the chitty foremen.
Relied on an assignment (Ex. C) dated 2-5-1119 from the foremen transferring rights under Ex. A to the plaintiff.
In replication, emphasised that P. Thomas & Company had no substantive proprietary right in the chitty beyond Clause 24 authorising Thommi Varghese to attend to affairs, and asserted Thommi Varghese had no substantive right to chitty assets; therefore, the earlier decree and execution could not have vested rights affecting the foremen.

Defendants 2 & 3 — Main Contentions (as pleaded in written statements)

Maintained that the decree in O.S. 642/1108 was validly obtained against the 1st defendant and P. Thomas & Company (whose partners were foremen), and that the 2nd defendant purchased both the rights under the hypothecation bond and the 1st defendant's equity of redemption in execution of that decree.
Asserted Thommi Varghese was in management and control of P. Thomas & Company at the material time; thus the decree was binding on the partners/firm.
Contended that Ex. C (assignment to plaintiff) was executed by Thommi Varghese and others in favour of the plaintiff (son-in-law of Thommi Varghese) without consideration, and that at the time of assignment the foremen had no subsisting rights under Ex. A.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Kumar v. Dominion of India, AIR 1952 All 695 (A)	Explains the purpose of Order XXX (suits by/against firms) and that naming a partner/manager in addition to the firm is surplusage; suits can be described in the name of the firm alone.	Used to show that the Ex. XIII suit was instituted against the firm P. Thomas & Company despite the description of the defendant including the manager's name, and that such naming does not alter character of the suit.
Motilal v. Chandmal, AIR 1924 Bom 155 (B)	Authority for the proposition that adding the partner/manager's name is generally surplusage in causes titled against a firm.	Supported the court's view that description of defendants in Ex. XIII did not prevent the suit being one against the firm.
Bhadreswar Coal Supply Co. v. Satis Chandra Nandy & Co., AIR 1936 Cal 353 (C)	Similar principle on describing firms/partners in suits; naming does not change the character of the suit.	Relied upon to reinforce that Ex. XIII was properly a suit against the firm notwithstanding manner of description.
Mahomed Husain v. Kishava Nandan, AIR 1937 P.C. 233 (D)	Section 99 CPC is intended to prevent technicalities from defeating substantive justice.	Cited to support the proposition that defects of procedure (including defects in service) may be cured by Section 99 and should not defeat a decree correct on merits and within jurisdiction.
Piare Lal v. Bhagwan Das, AIR 1933 All 295 (E)	Also explains the remedial purpose of Section 99 CPC to prevent technicalities overcoming justice.	Used with Mahomed Husain to show that irregularities should not upset valid decisions within jurisdiction.
Niranka Sashi Roy v. Suarganath Banerji, AIR 1926 Cal 95 (F)	General principle that correct decisions within jurisdiction should not be vacated for immaterial technical defects.	Supported the court's approach that a correct decision ought not be disturbed for formal defects.
Ishan Chandra v. Moomraj Khan, AIR 1926 Cal 1101 (G)	Similar authority for not upsetting decisions on mere technicalities.	Reinforced the court's reliance on Section 99 to cure irregularities.
Dunichand v. Ramdhan, AIR 1926 Lah 402 (H)	Same general rule that technicalities should not defeat merits and jurisdictional decisions.	Referenced to buttress the remedy-under-Section-99 approach.
Keen Robinson & Co. Ltd. v. Lily Biscuit Co., AIR 1932 Cal 541 (I)	Held that when a partner had in fact been served but no prior court direction under O.30, R.3 was obtained, such service might be deemed good service.	Directly relied upon to show that actual service on a partner/manager, despite omission to obtain a prior direction, can be treated as effective and therefore curable.
Gokuldas v. Dilsukharam, AIR 1943 Sind 188 (J)	Authority cited by respondent for the strict view that directions for service under O.30, R.3 should be obtained before issuing summons.	Considered and distinguished on facts; the court explained why that strict approach did not control the present case.
Narain Das & Co. v. S.M. Queshi, AIR 1933 Sind 102 (K)	Another decision cited for the proposition that direction of court should be taken before issuing summons under O.30, R.3.	Discussed but held not decisive for the present facts; court analysed distinctions.
Indian General S.N. & H. Co. v. Lal Mohan Saha, AIR 1916 Cal 813 (L)	Held that where a firm/corporation is sued particulars as to service should be clarified and appropriate application under O.29 R.2 or O.30 R.3 filed.	Noted by the court and discussed as not controlling the present question, which turned on whether defect was curable by s.99 given actual service on a manager in control.

Court's Reasoning and Analysis

The court framed the decisive legal question as whether failure to obtain a specific court direction under Order XXX, Rule 3 CPC before serving summons on the person in management rendered the decree void for lack of jurisdiction or constituted an irregularity curable under Section 99 CPC.

The court proceeded step-by-step as follows:

It examined the character of the Ex. XIII suit and accepted that the suit was instituted against P. Thomas & Company (the firm) notwithstanding that the 2nd defendant in the plaint was described as "Thommi Varghese ... manager for P. Thomas and Company". The court relied on authorities explaining that naming a partner or manager in addition to the firm is generally surplusage and does not change the nature of the suit (citing Ram Kumar and other decisions).
It recognised that Order XXX, R.3 CPC requires that when persons are sued as partners in the name of the firm, the court should direct service upon one or more partners or upon any person having control/management at the principal office. Thus a court direction for the mode of service is contemplated by the rule.
On the facts, the summons in Ex. XIII was served (by affixture) on Thommi Varghese described as the manager. The court found (based on the partnership agreement Ext. D and the evidence) that Thommi Varghese was indeed in control/management of the firm at the relevant time and had authority to sue/defend for the firm.
The court analysed the nature of the omission: no petition was filed to obtain the specific direction of the court prior to service. It contrasted the present facts with those in the AIR 1943 Sind decision (Gokuldas) where the notice was addressed to the firm but accepted by a person who was not a partner nor identified as the person in control, and service there was defective in that the notice did not specify it was being served on the person having control or management at the time of service.
Relying on authorities (including Mahomed Husain, Piare Lal and Keen Robinson) the court held that where a partner or person in management has in fact been served and the court has jurisdiction to decide the suit, omission to obtain prior directions under O.30, R.3 will ordinarily be an irregularity or defect that can be cured under Section 99 CPC rather than an illegality depriving the court of jurisdiction.
The court reasoned that Thommi Varghese knew of the service (he subsequently applied in 1113 to set aside an ex parte decree treating it as against him, which the court dismissed holding the decree was against the company), and the firm did not take steps to set aside the decree. The decree was thereafter executed and the rights sold in 1115; assignment to the plaintiff occurred in 1119.
Accordingly, the court concluded that the omission to seek the direction required by O.30, R.3 was a curable irregularity under Section 99 CPC; the Ex. XIII decree and execution proceedings were valid; and the plaintiff, by obtaining the assignment, had not obtained enforceable rights over the chitty bond that could defeat the purchaser's rights under the valid execution sale.

Holding and Implications

Holding: The court reversed the decree of the lower court and held that Ex. XIII (the decree and execution proceedings) was valid; the omission to obtain a direction under Order XXX, R.3 CPC was an irregularity curable by Section 99 CPC. Consequently, the plaintiff's suit is DISMISSED with costs to the 3rd defendant throughout. The plaintiff's cross-appeal was dismissed (on the basis that the principal suit stands dismissed) but without costs.

Implications for the parties: The direct effect is that the plaintiff obtains no relief; the rights sold in execution and subsequently acquired by the 2nd defendant and then by the 3rd defendant are held validly vested, and the assignment taken by the plaintiff did not confer enforceable title over the chitty bond. The decision treats the procedural omission under Order XXX, R.3 as remediable by Section 99 and does not set aside the Ex. XIII decree.

Broader implications: The court applied settled principles—drawing on earlier authorities—to resolve that actual service on a partner/person in management, where the court otherwise has jurisdiction and the defect is procedural, is generally an irregularity curable under Section 99 CPC. The opinion does not purport to create a new legal principle beyond these applications.

Note: This summary is compiled strictly from the content of the provided opinion and does not introduce facts or conclusions beyond those present in the source text.

Show all summary ...

The Judgment of the Court was delivered by

Govinda Pillai, J.:— The 3rd Defendant is the appellant. The suit is for money due under a chitty hypothecation bond Ex. A dated 26-8-1106 executed by the 1st defendant in favour of the foremen who were Puthenpurakkal Varki Thommi and Vazhapallil Poulose Kuruvila. The 1st defendant prized the ticket on 1-3-1106 at the seventh drawing and drew the amount. He defaulted to pay the subscriptions thereafter. In Thulam 1106, there was an Udampady between the two foremen and their children. By this Udampady one of the foremen Poulose Kuruvila and the son of the other foreman, Thommi Varghese, were authorised to realise the outstandings or assign the same in favour of others for money due to them. Accordingly the plaintiff was given the assignment of the rights under Ex. A by Ex. C dated 2-5-1119.

2. The plaintiff stated that he came to know that in execution of the decree in O.S 642 of 1108 of the Alleppey Munsiff's Court, the Keralavilasom Bank impleaded in this case as the 2nd defendant had purchased the rights under Ex. A bond, that the said decree & the execution proceedings were invalid and not binding on the foremen mainly because the foremen were not impleaded in the above suit, that the said decree was obtained against P. Thomas and company which had been a concern different from that which conducted the chitty, that even if P. Thomas & Company were connected with the chitty, the decree would not be binding on them since the partners in that firm were not impleaded in that suit, that Thommi Varghese who was impleaded in that case was not competent to represent P. Thomas & Company as he had no control or management of the present concern and that the summons in that case was returned unserved. The suit was therefore for a declaration that the decree and execution proceedings in O.S 642 of 1108 would not be binding on the foremen of the chitty and for recovery of 25200 fananis with interest. Defendants 2 & 3 had filed written statements in the case. Their main contentions were that the decree in O.S 642 of 1108 of the Alleppey Munsiff's Court was validly obtained against the 1st defendant and P. Thomas & Company of which the partners were Varki Thomas and Poulose Kuruvila, that the foremen of the chitty were the partners in the said firm, that in execution of this decree which is Ex. XIII in the case, the rights under the plaint hypothecation bond as well as the plaint properties were purchased by the 2nd defendant, that Thommi Varghese the son of one of the partners was in management and control of P. Thomas & Company at the relevant time, that the decree was properly obtained and was binding on the partners of the firm, that Ex. C assignment relied on by the plaintiff was executed by Thommi Varghese and others in favour of the plaintiff who is the son-in-law of Thommi Varghese without any consideration, that it was invalid as at the time of the assignment, the foremen had no subsisting right over Ex. A and that the decree and the execution proceedings in Ex. XIII case were not liable to be set aside.

3. The 2nd defendant which went into liquidation had purchased the right under the chitty hypothecation bond and also the 1st defendant's right to the equity of redemption in execution of Ex. XIII case. Thus the 2nd defendant was the full owner thereof, and this right was sold in auction by the liquidator and purchased by the 3rd defendant. He had obtained delivery of possession of the properties. In addition to this the 3rd defendant contended that the suit was barred by limitation.

4. The plaintiff filed a replication where it was stated that P. Thomas & Company had nothing to do with the chitty concern except what is contained in clause 24 of the chitty Variola authorising Thommi Varghese the son of Varki Thommi one of the partners to attend to all the affairs in the chitty and apart from this Thommi Varghese had no right to the chitty assets. Since the chitty foremen were not defendants in O.S 642 of 1108, neither the plaintiffs nor the 3rd defendant in that case could get any right by virtue of the decree and execution proceedings and he pressed for-a decree as prayed for.

5. The findings of the court below are: (1) P. Thomas & Company, of which the two persons Thommi Varki and Poulose Kuruvila are partners, are the foremen of the chitty in question. (2) At the time when Ex. XIII decree was obtained Thcmmi Varghese was in control or management of P. Thomas & Company. (3) Since no direction of court was taken in Ex. XIII case to serve summons on the oerson in management of P. Thomas & Company, the second defendant in that suit, the summons cannot be considered as validly served under Order XXX, R. 3 and as such the court had no jurisdiction to pass Ex. XIII decree against P. Thomas & Company; in other words Ex. XIII decree is one passed without jurisdiction against P. Thomas & Company. (4) The 3rd defendant is incompetent to question the validity of the assignment of the chitty security bond in the name of the plaintiff. (5) The plaintis's right to claim subscriptions which Jail due in Medom 1106 and Thulam 1107 is barred by limitation.

6. The plaintiff was, therefore, given a decree to release Tr. Rs. 3100 with interest. The parties were directed to bear their costs. The appellant's arguments related to the correctness of the third finding given above. If his position is accepted then there was nothing for the foremen to assign and the suit has to be dismissed. The plaintiff-respondent has filed a cross appeal memorandum claiming the subscriptions which fell due in Medom 1106 and Thulam 1107.

7. The result of the appeal would depend on the question whether the non-observance of the direction in Order 30, R. 3 of the CPC, would result only in an irregularity which can be cured by Section 99 of the CPC, or whether it is an illegality affecting the jurisdiction of the court. Order XXX of the CPC lays down the rules for suits by or against firms and persons carrying on business in names other than their own. Obviously, as pointed out in — ‘Ram Kumar v. Dominion of India’, AIR 1952 All 695 (A), this is intended to avoid a long array of the plaintiffs or defendants and it prescribes a convenient mode of institution of suits by or against the partners collectively in the names of the partners who carry on business under a particular name. The firm as such need alone be described as the plaintiff or the defendant, and the addition of the words “represented by A, a partner or by B, the Manager” does not alter the character of the suit as one by or against the firm. In describing the cause title of such suit the name of the plaintiff or the defendant should be the name of the firm only without addition of the name of the partner or Manager suing although addition of such name does not matter in the least. Such description can only be treated as mere surplusage. See the decisions in — ‘Motilal v. Chandmal’, AIR 1924 Bom 155 (B) and — ‘Bhadreswar Coal Supply Co. v. Satis Chandra Nandy & Co.’, AIR 1936 Cal 353 (C). It became necessary to mention this aspect for there was an argument advanced by the respondent's learned Advocate that Ex. 13 suit was not against P. Thomas & Company but only against Thommi Varghese, the Manager. This is against what the plaintiff himself pleaded in the lower court. Clause (b) of Paragraph 10 of the plaint runs thus: “(The 2nd defendant in that case was P. Thomas & Company. That was another partnership concern of the foremen.)”* In Ex. 13 the description of the 2nd defendant was “Thommi Varghese, aged 40, merchant and manager for P. Thomas and Company in Puthenangadi, Alleppey”. There is no doubt that the suit had been instituted against the partnership concern P. Thomas & Company. The finding of the lower court that this P. Thomas & Company were the foremen in the chitty was not questioned before; us for the overwhelming evidence in the case fully justifies this finding.

8. The question then is whether the taking of summons to Thommi Varghese as manager of P. Thomas & Company without a specific direction from court as provided for in R. 3 of Order 30 of the CPC will make the decree Ex. 13 invalid. The court which passed Ex. 13 decree has the jurisdiction to entertain, try and decide the suit in which that decree is passed. Thus want of jurisdiction to pass Ext. 13 decree does not at all arise for consideration. It is evident that the summons of suit was not issued after taking the direction mentioned in R. 3 of O. 30. It lays down that when persons are sued as partners in the name of their firm, the summons shall be served upon any one or more of the partners or at the principal office at which the partnership business is carried on within India upon any person having, at the time of service the control or management of the partnership business there, as the court may direct. It is obvious that a direction of court is necessary for such service either on the partner or partners or on the person in control or management of the business. If the summons had been issued and served on the manager without a specific direction of the court in that behalf, will it affect the jurisdiction of the court to pass a decree against the firm or whether it will only be an irregularity, error or defect that can be cured by Section 99 of the CPC.

9. In this case summons was served, though by affixture, on Thommi Varghese as manager of the firm. He was really the manager of the firm at that time and this is further evident from Ext. D the partnership agreement. He had also been authorised to sue and to defend on behalf of his father, one of the two partners, on behalf of the firm. The decree was passed in 1108 after the contest by the 1st defendant in that case. He is the 1st defendant here also. Then in 1113, Thommi Varghese filed the original of Ext. 4 petition to set aside the ex parte decree against him. Ext. 5 is copy of the affidavit filed in support of Ext. 4. In this he seems to have been under the impression that the decree was personally against him. The court dismissed his petition by Ext. 6 order holding that the petition was not maintainable as the decree was against the company and not against the person of the petitioner. If, was thereafter on 1-3-1115 as seen from Ext. 14 execution diary that the rights under the plaint hypothecation bond were sold in court auction. In 1119, an assignment of the identical bond was taken in the name of the plaintiff who is none other than the son-in-law of Thommi Varghese and the present suit was filed.

10. The only defect pointed out was that by a petition the direction of the court as to the mode of service of summons was not obtained. The summons itself was served through court, and the service without a direction can only be irregularity curable under Section 99 of the CPC. This latter section is enacted in order “to prevent technicalities from overcoming the ends of justice and from operating as a means of circuity of litigation”. Vide — ‘Mahomed Husain v. Kishava Nandan’, AIR 1937 P.C 233 (D) and — ‘Piare Lal v. Bhagwan Das’, AIR 1933 All 295 (E). A decision which is correct on the merits and is within the jurisdiction of the court should not be upset merely for technical and immaterial defects Vide — ‘Niranka Sashi Roy v. Suarganath Banerji’, AIR 1926 Cal 95 (F); — ‘Ishan Chandra v. Moomraj Khan’, AIR 1926 Cal 1101 (G), and — ‘Dunichand v. Ramdhan’, AIR 1926 Lah 402 (H). In a case like the one before us, the Calcutta High Court held in — ‘Keen Robinson & Co. Ltd. v. Lily Biscuit Co.’, AIR 1932 Cal 541 (I) that when in fact a partner had been served with summons but no directions of the court under O. 30, R. 3 had been first obtained, such service might be deemed good service. Reference was made by the respondent's learned Advocate to the three decisions for the position that direction of court should be taken before summons was issued. They are — ‘Gokuldas v. Dilsukharam’, AIR 1943 Sind 188 (J); — ‘Narain Das & Co. v. S.M Queshi’, AIR 1933 Sind 102 (K) and — ‘Indian General S.N & H. Co. v. Lal Mohan Saha’, AIR 1916 Cal 813 (L).

11. In the ‘AIR 1943 Sind case (J)’, a prohibitory order had been issued in execution of a decree to a firm not to make payment to the defendant. It had been accepted by one Mankodi who had affixed his signature thereto and also the rubber stamp of the garnishee firm. Then the decree-holder applied for a direction to the garnishee to produce the money in court. Notice on that also had been served as mentioned before. There was no appearance for the garnishee and so an order for payment of money in court was passed. Then the garnishee firm, appeared and applied under O. 9, R. 13 of the CPC to Set aside the ex parte order. The Court finding that no direction of court had been taken for serving notice as provided in Order 30, R. 3 of the CPC set aside the order and restored the garnishee proceedings to file. In the course of the order Lobo J., observed that Order 30, R. 3 and Order 48, R. 2 of the CPC should be read together that in order to effect proper service in this matter the directions of the Court should have been obtained in the first instance and service should have been effected in the manner provided for in O. 30, R. 3 of the CPC, that he cannot treat these matters of service as mere formalities and that strict compliance with the provision of law alone will justify a court in holding service, to be good under Order XXX.

12. The notice in that case was addressed to the firm and it was accepted by Mangodi who was not a partner of the firm. Neither the notice was addressed to Mankodi as manager of the firm, nor had he accepted the notice describing as such and so his Lordship observed thus at page 190:

“The notice issued by the court should have specified that it was being served upon the person having at the time of service the control or management of the partnership business. It did not do so.”

13. If the notice had been directed as indicated above, it was apparent that the service would have been good, and the absence of direction by court would only have been an irregularity curable under Section 99 of the CPC. There was defect in the issue of notice and in service therefor. The service of notice was not considered to be proper and that induced the court to set aside the ex parte order. The decision does not say what the effect would have been if the notice had been served on one of the partners or on the person in control of the business or on the manager. It also does not consider whether the defect is an irregularity or an illegality.

14. On the facts of the case there, the opinion was expressed and it does not in any way affect the case before us. Here the firm is the defendant and summons had been served on the manager of the firm. The manager knew of it. He applied to set aside the ex parte decree treating it as one passed against him. He was told that the decree is against the firm and not against him. Yet no steps were taken by the firm to get the decree set aside. Thereafter the decree was executed and the right under the bond sold in 1115. The irregularity is one that can be cured under Section 99 of the CPC.

15. In the ‘AIR 1933 Sind case (K)’, the suit was by two partnership firms of the same name. The managing partner of the first firm and the secretary of the second firm had verified the plaint. The Registrar wanted the description to be clarified and this went before the Additional Judicial Commissioner for orders. Following the decision in ‘AIR 1916 Cal 818 (L)’, it was held that where a corporation or firm is sued as a defendant the plaint should be accompanied by a separate application under O. 29, R. 2 or O. 30, R. 3 of the CPC, as the case may be stating where, in what manner and on whom the plaintiff wishes the summons to be served. This does not decide the question before us. In ‘AIR 1916 Cal 818 (L)’, the suit was against the defendants described as the India General Navigation and Railway Company and the Rivers Steam Navigation Company by their joint agent K.E Rogers. Rogers entered appearance and pleaded that the suit was not maintainable against him. When the case came on for trial it was represented to the court on behalf of Rogers that he had retired from the services of the companies mentioned and had in fact left the country. The plaintiff therefore applied for leave to omit the name of Mr. Rogers from the plaint. The application was granted and the suit was decreed ex parte as if it had been instituted properly against the two companies. There was a petition to set aside the ex parte decree and while allowing the same their Lordships observed that the suit was substantially against Mr. Rogers although he was sued in his capacity as the joint agent of the two companies mentioned, that the suit should have been framed as one against the two companies described by their proper names, that with the removal of Roger's name from the party array the plaint will stand amended as against the two companies and that fresh summons should have been issued to the defendants before decreeing the same. This case also does not touch the matter now before us.

16. On a consideration of all the facts mentioned above, we hold that there was proper service of summons on the firm P. Thomas and Company in Ext. 13 case, that the omission on the part of the plaintiff that to seek the direction of the court for service of summons was only a defect or irregularity that can be cured by Section 99 of the CPC, that the decree and execution proceedings in that case are valid and that by obtaining the assignment in question the plaintiff had not obtained any right over the chitty bond. The decree of the court below is thus not maintainable. In reversal therefore of the decree of the lower court, the plaintiff's suit is dismissed with costs to the 3rd defendant throughout. Since the plaintiff's suit stands dismissed, there is no occasion for considering the cross-appeal memorandum on the merits. It is dismissed but without costs.

17. Order accordingly.