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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. Ch. Raghava Rao for the Appellant.
  • Mr. E. Vinayaka Rao for the Respondents.
Judges
  • Wadsworth, J.
Acts
  • provisions of the Madras Impartible Estates Act
  • S. 69 of the Partnership Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. Ch. Raghava Rao for the Appellant.
  • Mr. E. Vinayaka Rao for the Respondents.
Judges
  • Wadsworth, J.
Acts
  • provisions of the Madras Impartible Estates Act
  • S. 69 of the Partnership Act
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The appellant was the second defendant in a suit on a promissory note which was decreed without contest. He objected to execution of that decree on the ground that the plaintiffs constituted an unregistered partnership at the time of filing, rendering the suit bad and the decree a nullity.

The plaint (filed 27th June, 1935) described the plaintiffs by name only and did not expressly allege that the claim was made on behalf of a firm, nor did it pray for a decree in favour of a firm. Clause 2-a of the plaint averred that the two plaintiffs were "joint partners" and that the first plaintiff was the managing partner, signing also on behalf of the second plaintiff. The decree altered the cause title to describe the plaintiffs as "Shobhagmul Sowcar and Ramlal Sowcar by managing partner, first plaintiff"; the same cause title appears in the execution petition. The promissory note underlying the suit is dated 15th March, 1933 — a date relevant to the commencement provisions of the Partnership Act.

The executing Court (on a petition for execution of the decree) was addressed with the appellant's objection. The District Judge rejected the objection; the present opinion considers the appeal from that decision. The appellate court dismissed the appeal with costs and refused leave.

Legal Issues Presented

  1. Whether the decree was one passed without jurisdiction (i.e., whether the existence of an unregistered partnership rendered the original suit and resulting decree a nullity under S. 69 of the Partnership Act).
  2. Whether the executing Court is entitled to entertain and decide the question of jurisdiction (that is, whether the executing Court may go behind the decree to determine whether it was rendered without jurisdiction).

Arguments of the Parties

Appellant's Arguments

  • The appellant contended that under S. 69 of the Partnership Act no suit could be maintained by an unregistered firm in respect of a contract; therefore the trial Court had no jurisdiction, the decree is a nullity, and the executing Court should refuse to execute the decree.

Arguments presented in the execution proceedings (counter-affidavit)

  • In the counter-affidavit to the execution petition it was contended that the partnership was unregistered (an allegation relied on by the appellant in the execution proceedings). No reply or evidence was produced to contradict that contention in the execution proceedings.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kalipada Sarkar v. Hari Mohan Dalal The general rule that an executing Court must take a decree as it stands and cannot ordinarily entertain objections as to the decree's legality or propriety. The Court relied on this principle to frame the starting point of analysis: execution courts are ordinarily bound by the decree and can only question it under narrowly recognised exceptions.
Nathan v. Samson Illustration that the exception permitting an executing Court to refuse execution of a decree apparently passed without jurisdiction is not uniformly recognised in all jurisdictions. The Court cited it to note that the exception (refusing execution where decree is apparently without jurisdiction) is not universal, but that the exception does hold force in Madras — which is the applicable stance for the present matter.
S. Girdharilal Son & Co. v. B. Kappini Gowder That a remedy which accrues before the date on which S. 69 comes into force is protected by S. 74(b) and is to be treated as accruing before the operation of S. 69. The Court relied on this authority to support the view that a suit instituted after 1st October, 1933 by an unregistered firm in respect of a debt arising before the commencement of S. 69 may fall outside the operation of S. 69; this informed the Court’s conclusion on whether S. 69 barred the suit in question.

Court's Reasoning and Analysis

The Court proceeded in stages:

  1. It began with the general principle (from Kalipada Sarkar v. Hari Mohan Dalal) that an executing Court must accept a decree as it stands and generally cannot entertain objections to its legality — but recognised established exceptions to that rule and warned against creating new exceptions lightly.
  2. The Court identified and discussed recognised categories where an executing Court may go behind a decree: (a) decrees apparently passed without jurisdiction; (b) sales affecting property which by statute are inalienable (e.g., Madras Impartible Estates Act or Act III of 1895) — the Court expressed doubt whether these are true exceptions since the executing Court’s concern in such cases is to avoid executing an illegal alienation rather than to invalidate the decree itself; (c) decrees against persons under disability not properly represented (not explored in detail in this opinion); and (d) decrees against persons already dead (again discussed as to whether it is an inquiry into executability rather than decree validity).
  3. Turning to the facts of the case, the Court observed that on its face the decree did not appear to have been passed without jurisdiction. The decree as drawn appears to be in favour of a partnership, but there was nothing on the face of the decree to show the partnership was unregistered.
  4. Although the counter-affidavit to the execution petition alleged the partnership was unregistered and no evidence was filed in reply, the Court considered that even if that allegation were true, it did not make the decree on its face void for want of jurisdiction.
  5. The Court examined whether S. 69 of the Partnership Act operated to bar the suit. Two relevant legal points were noted:
    • Some suits by unregistered firms may be rejected in limine under S. 69, but that applies only in particular circumstances: (a) where the firm is not a Hindu joint-family non-contractual firm within S. 5; and (b) where the proceeding is not saved by S. 74.
    • The promissory note was dated 15th March, 1933; S. 69 came into force on 1st October, 1933 (the Partnership Act generally came into force earlier on 1st October, 1932). The Court relied on S. Girdharilal Son & Co. v. B. Kappini Gowder for the proposition that a remedy which accrued prior to the date S. 69 came into force would be outside the operation of S. 69 by virtue of S. 74(b). Thus, a suit instituted after 1st October, 1933 in respect of a debt arising before S. 69 came into force would not necessarily be barred by S. 69.
  6. The Court noted factual indicia: the two plaintiffs were Hindus closely related. The learned District Judge inferred they were probably not a joint-family firm, but the Court observed that such a contention (that S. 5 applies or not) was not put in issue at trial and could not properly be resolved by the executing Court without an evidentiary inquiry.
  7. The Court concluded that, even if there might have been some defect in jurisdiction, determining that defect would require research and evidentiary investigation inappropriate for an executing Court. The executing Court had an apparently good decree before it and was not entitled to conduct the elaborate inquiry that would be necessary to determine the legal validity of the decree where evidence had not been adduced at trial.

Holding and Implications

Holding: The appellate court upheld the decision of the District Judge and dismissed the appeal with costs. Leave to appeal was refused.

Implications and immediate consequences:

  • The executing Court was correct in executing the decree because the decree was not, on its face, one passed without jurisdiction.
  • The executing Court should not undertake an elaborate, evidence‑based inquiry into the legality of the decree where the decree appears valid on its face and the issue was not raised and tried before the trial Court; such an inquiry is beyond the executing Court's ordinary function.
  • The opinion restricts the executing Court's role to narrow, recognised exceptions and cautions against expanding exceptions; the decision leaves the factual and legal disputes as matters for trial or for an appropriate forum where evidence can be adduced.

Note: This summary is confined to the matters expressly discussed in the provided opinion. It does not introduce facts or legal propositions not present in the opinion.

Show full summary ...

    A. Ramu Mudali v. Shobagmul Sowcar And Another

    The appellant was the second defendant in a suit on a promissory note which was decreed without contest. In bar of execution of that decree, he raised the objection that the suit was bad and the decree a nullity because the plaintiffs at the time of the filing of the suit constituted an unregistered partnership. The plaint filed on 27th June, 1935, describes the plaintiffs by their names only and contains no allegation that the claim is made on behalf of the firm or that the promissory note was executed to the firm, nor does it pray for a decree in favour of the firm. But Cl. 2-a of the plaint avers that the two plaintiffs are “joint partners”, that the first plaintiff is the managing partner of the firm and that therefore he is signing the plaint on behalf of the second plaintiff also. Thus the fact that the plaintiffs constitute a firm is pleaded merely to show that the first plaintiff has authority to represent the second plaintiff. The plaint is not in other respects drafted as a plaint in a suit filed by a firm. The decree however has altered the cause title and describes the plaintiffs as “Shobhagmul Sowcar and Ramlal Sowcar by managing partner, first plaintiff” and the same cause title is repeated in the execution petition. The promissory note upon which the suit is brought is dated 15th March, 1933, a date of some importance with reference to the date of the commencement of the Partnership Act.

    The objection raised by the appellant is briefly that under S. 69 of the Partnership Act no suit could lie by an unregistered firm in respect of a contract and therefore the Court had no jurisdiction to entertain this suit, the decree is a nullity and the executing Court should have refused to execute it. Two questions obviously arise. One is, whether this decree is one passed without jurisdiction and the other is, whether this is a question which the executing Court is entitled to go into. I will deal with the second question first.

    Undoubtedly, the general rule is that the Court which executes a decree must take it as it stands and cannot entertain an objection as to its legality or propriety: Kalipada Sarkar v. Hari Mohan Dalal (1). This general rule is subject to exceptions; but it has been generally recognised by the Courts that exceptions to the rule should be restricted to certain categories which have been recognised by the Courts and that the Courts should be very chary of recognising fresh exceptions. Certain exceptions are widely recognised. It has always been recognised by this High Court that an executing Court can refuse to execute a decree if it is one apparently passed without jurisdiction. Even this exception has not been recognised everywhere—vide Nathan v. Samson (2), but it certainly holds force so far as Madras is concerned. If, therefore, on the face of the decree, it can be seen that the Court which passed the decree had no jurisdiction, or if there are apparent reasons for doubting its jurisdiction to pass that decree, the executing Court can go into the question whether or not the decree is a nullity. The extent to which the executing Court can go into the validity of a decree, which is not on its face one passed without jurisdiction, is very limited.

    One class of cases has been recognised by this High Court, namely, cases in which the executing Court contemplates a sale of property which, by a provision in law enacted for the benefit of the public generally, is inalienable. Cases under this class relate, generally, to sales in violation of the provisions of the Madras Impartible Estates Act or sales in violation of Act III of 1895 governing service inams. It may, however, be doubted, whether this class of cases is really an exception to the general rule; for the grounds of the executing Court's enquiry into the executability of the decree are not really grounds relating merely to the decree itself, but rather to the power of the Court to effect the alienation which the execution contemplates. That is to say, the basis of the executing Court's right to go into the nature of the decree is really not the illegality of the decree, but the Court's own legal duty not to carry out an alienation which offends against a prohibition laid down for public reasons by statute. In other words, it is not really a power to question the decree, but a power residing in the executing Court to make sure that its own act is not illegal. I therefore venture to doubt whether this class of cases is really an exception to the general rule that the Court should not go behind the decree except on grounds of apparent lack of jurisdiction.

    A further class of cases relates to decrees against persons under a disability who are alleged not to have been properly represented. There is a difference of opinion in the various Courts on the question whether an executing Court can go into the validity of the decree on these grounds. It is not necessary for me to go into the question for the purpose of the present case.

    A further possible exception relates to decrees against dead men. Here again, it is by no means universally acknowledged that an executing Court can go into the question whether the decree was passed against a person already dead. But even if the power of the executing Court to make such an enquiry be recognised, it is again perhaps not so much an enquiry into the validity of the decree, as an enquiry into the existence of any properties against which a decree can be executed. For if the defendant was dead at the time when the decree was passed, his properties would have already passed to his heirs and all that would remain against which the decree could be executed would be the person of a man already defunct. Looked at from that angle, it is not really an exception to the rule that the executing Court cannot go into the validity of the decree apparently passed with jurisdiction.

    An attempt has been made to argue in the present case that there is a prohibition against the passing of decrees in favour of unregistered partnerships—a matter which seems to me rather doubtful, for all we find in S. 69 is a prohibition against the filing of suits by unregistered partnerships. It has, however, been argued that from the terms of sub-Cl. 4-b of S. 69, one might infer a general prohibition against the entertainment of execution proceedings by unregistered partnerships. This seems to me to be to deduce far too much out of the special provision relating to Small Causes Court proceedings.

    Now this decree, on its face, is not one apparently passed without jurisdiction. Certainly, on its face, it appears to be a decree in favour of the partnership, though, as I have already indicated, no such decree was expressly prayed for. But there is nothing on the face of the decree to show that the partnership was unregistered. True that in the counter-affidavit to the execution petition, it was contended that the partnership was unregistered and, no reply having been given and there being no evidence to the contrary, one may infer that this contention was correct. But the fact remains that the decree was not one apparently passed without jurisdiction. I doubt also whether it can be said that a Court has no jurisdiction to pass a decree in favour of an unregistered partnership. The most that can be said is that, in certain circumstances, a suit by an unregistered partnership is liable to be rejected in limine. The circumstances are (a) that the partnership in question is not a partnership of the non-contractual kind constituted by a Hindu joint family (vide S. 5 of the Act); (b) that the proceeding in question is not one saved by the special provisions of S. 74 of the Act.

    Now in the present case, it appears that the two plaintiffs are Hindus closely related to one another.

    The learned District Judge has inferred that in all probability they do not constitute a joint family firm. But the matter not having been put into issue in the suit, it cannot, in my opinion, be said that the contention based on S. 5 would not have been open to the plaintiffs had the objection been taken, as it should have been taken, at the time of the trial. Further, the debt with which we are concerned is a promissory note dated 15th March, 1933, said to be in respect of a family debt, the origin of which we do not know. The Partnership Act is peculiar in that the commencement of the Act for the purpose of S. 69 is a year later than the commencement for the purpose of the rest of the Act. The Act generally came into force on 1st October, 1932. S. 69 came into force on 1st October, 1933. It is, I think, settled so far as Madras is concerned, and also in Rangoon, that a suit instituted after 1st October, 1933, by an unregistered firm in respect of a debt arising before the commencement of the Act is one to which S. 69 does not apply. The terms of S. 74(b) exclude from the operation of the Act any legal proceeding or remedy accruing before the commencement of the Act in respect of any right, obligation or liability which, with reference to Sub-Cl. (a), was “acquired, accrued or incurred before the commencement of the Act.” Now it has been held that the remedy which accrues before the commencement of the Act is one which accrues before the date on which S. 69 comes into force, S. Girdharilal Son & Co. v. B. Kappini Gowder . It is to my mind difficult to postulate a different date for the commencement of the Act when dealing with the liability in respect of which the remedy arises; for, if a man had a right on the 30th September, 1933, to bring a suit in respect of a debt incurred after the 1st October, 1932, one would naturally infer that remedy would be protected by the terms of S. 74, Cl. (b), the object of which, apparently, is to give the Government time to frame the necessary rules and to give the parties time to carry out the necessary formalities.

    I am, therefore, inclined to the view that the suit out of which this decree arose is not one barred under S. 69 of the Partnership Act. Whether that view be correct or not, it seems to me clear that any lack of jurisdiction—if lack of jurisdiction be the proper term—which may have existed in the Court which passed this decree, could only be ascertained with an amount of research and investigation which would be beyond the functions of an executing Court. The executing Court had an apparently good decree to execute and it is not, in my opinion, entitled to go into an elaborate enquiry into the legality of that decree, an enquiry which demands the adducing of evidence which was not put before the trial Court before which the objection should have been raised.

    In the result, therefore, I hold that the decision of the District Judge is correct and I dismiss the appeal with costs.

    Leave refused.

    Appeal dismissed.

    N.R.R

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    Comments

    A. Ramu Mudali v. Shobagmul Sowcar And Another
    (Sep 18, 1939)