Citation Codes

Equivalent Citations

citation codes

Case Number

Appeal from Original Order No. 389 of 1928

Advocates

Dr. Naresh Chandra Sen Gupta (with Messrs Urukramdas Chakraburty and Bama Prosanna Sen Gupta) for the Appellants.
Mr. Sarat Chandra Roy Choudhury (with Mr. Bhagirath Chandra Das) for the Respondents.

Judges

B.B Ghose
S.K Ghose, JJ.

See more information ...

Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This appeal arises from an order of the Subordinate Judge refusing an application by the judgment-debtors (who claimed to be the representatives of one Dinabandhu Pal) that a decree obtained by the respondent firm (the decree-holders) could not be executed against certain properties. The respondent firm had obtained a decree in the High Court against a firm styled "Bonamali Dinabandhu Pal". Some properties had been attached before judgment, and the decree-holders sought to enforce their decree by sale of those attached properties.

The Appellants raised two principal objections in the Courts below: (1) that the firm was a one-man firm owned solely by Dinabandhu Pal, who died while the High Court suit was pending, and therefore the decree (purportedly against the firm) was in truth a decree against a dead man and void for want of substitution of heirs; and (2) that the properties targeted for execution were not assets of the firm but personal properties of Dinabandhu Pal.

The Subordinate Judge rejected both objections and the Appellants appealed. The appellate court considered relevant provisions of Order 30 of the Code of Civil Procedure, Rule 50 of Order XXI and section 47 of the Code, and remitted the matter for further evidence on specific factual questions.

Legal Issues Presented

Whether a decree rendered against a firm styled in a firm-name is void when the firm is effectively a one-man firm and the sole proprietor died during the pendency of the suit such that the decree was in effect made against a dead person without substitution of his legal representatives.
Whether the executing court may enquire into the validity of a decree (specifically whether the decree is a nullity for want of jurisdiction over the person) when execution is sought against attached properties.
Whether the properties attached before judgment and now sought to be sold in execution belong to the firm or to the personal estate of the deceased, and if a failure to object to attachment during the deceased's lifetime affects that claim.
Whether the procedural provisions of Order 30 (particularly r. 4 and r. 10) apply to protect a decree where a firm's membership composition (one-man firm versus multi-member firm) changes or is disputed during the suit.
Whether the appellants, appearing as legal representatives of Dinabandhu Pal, could raise a question under section 47 of the Code in respect of the execution proceedings.

Arguments of the Parties

Appellants' Arguments

The decree is void because the defendant firm was in reality a one-man firm owned by Dinabandhu Pal, who died during the pendency of the High Court suit; no substitution of his heirs occurred and thus a decree rendered after his death is a decree against a dead man and an absolute nullity.
The properties targeted for execution were personal properties of Dinabandhu Pal (purchased by an ancestor), not assets of the firm, and therefore execution against those properties is impermissible.
They appeared as legal representatives of Dinabandhu Pal and, given that the suit was brought in the firm-name but was in substance against Dinabandhu by a second name, they can raise the issue under section 47 of the Code.

Respondent's Arguments

The decree should be treated as valid: where on its face the decree is against a firm, and it was not shown to the High Court that the firm was a one-man firm, Order 30, r. 4 applies to preserve the decree even if a partner dies during the suit.
The executing court cannot go behind or enquire into the validity of the decree on the ground alleged (i.e., the decree being against a dead man) and must not refuse execution on that basis; the Subordinate Judge relied on the case of Gorachana Haldar v. Profulla Kumar Roy to that effect.
The respondents also alleged that the firm actually had two partners (Dinabandhu and his brother Jagabandhu Pal), so Order 30, r. 4 would apply if Dinabandhu died during the pendency of the suit.
On section 47, the respondents contended that the appellants did not come as legal representatives of the firm but only as legal representatives of Dinabandhu Pal, and therefore the particular procedural question did not fall under section 47.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gorachana Haldar v. Profulla Kumar Roy	Authority relied upon by the Subordinate Judge for the proposition that an executing court should not go behind the decree and enquire into its validity.	The Subordinate Judge relied on this case to refuse inquiry into the decree's validity. The appellate court considered the proposition but held that where a decree is a nullity for want of jurisdiction over the person (e.g., decree made against a dead person), the executing court can enquire into that question; thus the appellate court did not accept the Subordinate Judge's absolute bar to inquiry in the circumstances alleged.
Full Bench case referred to by the Subordinate Judge (unnamed in the opinion)	Stated proposition that where a decree is a nullity due to lack of jurisdiction (pecuniary, territorial or over the person), the executing court may refuse execution.	The appellate court relied on the Full Bench proposition to support the view that an executing court is entitled to refuse execution of a decree that is a nullity for want of jurisdiction; it applied that principle to the present allegation that the decree was made against a deceased person and therefore may be a nullity.

Court's Reasoning and Analysis

The Court proceeded by addressing the two main objections raised by the Appellants and related procedural questions:

Nature of suits against firm-names and death of a one-man firm proprietor:
The Court explained that suing in a firm-name can be a short way of describing defendants, and the suit is in reality against the persons constituting the firm. Order 30, r. 4 applies where a firm consists of two or more persons. For the special situation of a single person carrying on business in a name other than his own, Order 30, r. 10 provides that such a person "may be sued in such name or style as if it were a firm-name" and the rules of the Order are to apply so far as the nature of the case will permit.

The Court then analysed what should happen if such a person dies during the pendency of the suit. It reasoned that a person carrying on business in a firm-name is effectively being sued under an alias; if he dies during the suit it is necessary to bring his legal representatives on the record to enable a proper decree to be made. Failing substitution, a decree made after his death would be a decree against a dead man and thus an absolute nullity.

The Court noted a lack of direct authoritative English or Indian decisions governing this precise point, but referred to an English rule (Order 48A, r. 11) and practice notes indicating that where a person carrying on business in another name dies, proceedings should be instituted against executors; the Court treated these authorities as confirmatory of its view.
Whether the executing court can inquire into a decree's validity when alleged to be void:
The Respondent contended that Order 30, r. 4 would validate the decree where a firm on its face had two or more members and that the executing court could not go behind the decree. The Court considered the Full Bench authority and concluded that where a decree is a nullity for want of jurisdiction (including jurisdiction over the person), an executing court is entitled to refuse to execute that decree. Applying that principle, if the decree was made after the death of the person sued such that the Court had no jurisdiction over the defendant's person, then the decree would be a nullity and the executing court may inquire into that point.

Consequently, the appellate court held that the factual questions whether the firm had two or more partners (so r. 4 might apply) and whether Dinabandhu died before the decree require investigation by the Subordinate Judge.
Character of the attached properties and prior conduct:
On the second objection (that the properties were personal and not firm assets), the Court observed that this point is inconsistent with the Appellants' primary contention that the firm was a one-man firm; if it were a one-man firm, creditors could proceed against properties whether personal or firm assets. More materially, the properties in question had been attached before judgment while Dinabandhu was admittedly alive and he did not raise any objection at the time. The Court considered that Dinabandhu's failure to object amounted to treating the properties as assets liable to firm debts, and his legal representatives could not now successfully challenge execution on that account.
Section 47 and the capacity in which appellants appeared:
The respondents argued that section 47 did not apply because the appellants did not present themselves as legal representatives of the firm but only of Dinabandhu Pal. The appellants countered that, since the suit was in the firm-name but in substance against Dinabandhu by his second name, they had come as legal representatives of Dinabandhu and could raise the section 47 question.

The appellate court treated that point as sufficiently answered by the appellants' explanation and proceeded to remit the factual inquiries for evidence.

Holding and Implications

Holding: The order of the Subordinate Judge is set aside and the case is remitted to him for evidence and findings on two specific factual issues: (1) whether the firm of Bonamali Dinabandhu Pal consisted of two or more partners at the time the plaintiff's suit was brought; and (2) whether Dinabandhu Pal died after the suit was instituted and before the decree was made by the High Court.

Implications:

The direct effect is a remand: the Subordinate Judge must take evidence on the two stated questions and then proceed in accordance with those findings.
The court concluded that an executing court may enquire into whether a decree is a nullity for want of jurisdiction over the defendant's person (including where the decree is alleged to have been made against a deceased person), so execution can be resisted on that ground pending factual determination.
On the property point, because the properties were attached during the deceased's lifetime and no objection was then raised, the appellants (as legal representatives) are limited in contesting execution as to those properties.
Costs: the appeal's costs will abide the final result; the hearing-fee was assessed at five gold mohurs.
No broader legal precedent was expressly declared beyond the application of established principles (as discussed in the reasoning): the opinion remits factual issues for determination rather than laying down a novel rule of general application.

This summary is confined strictly to matters stated in the provided opinion and does not introduce any information not contained therein.

Show full summary ...

Hari Bandhu Pal v. Hari Mohan Saha

The Judgment of the Court was as follows:—

B.B Ghose, J.:— This is an appeal by the judgment-debtors who claimed to be the representatives of one Dinabandhu Pal against an order of the Subordinate Judge refusing their application to the effect that a decree obtained by the Defendant firm cannot be executed against certain properties which were being sought to be sold in execution of the decree. The decree was obtained by the Respondent firm against a firm named Bonamali Dinabandhu Pal. Certain properties were attached before judgment and the decree-holders now seek to enforce their decree by the sale of those properties. The firm of Bonamali Dinabandhu Pal carried on business as dealers in piece goods at Dhamari Bazar in the district of Dacca. The objections raised by the Appellants in the Courts below were two-fold. The first was that the firm of Bonamali Dinabandhu Pal was a one-man firm, the owner of which was Dinabandhu Pal alone. When the suit was pending in the High Court, Dinabandhu died and a decree was made against the firm Bonamali Dinabandhu Pal after the death of the sole proprietor of the firm Dinabandhu Pal. The decree made by the High Court was, therefore, void. Although it purported to be a decree against the firm, it was really a decree against Dinabandhu Pal deceased, and as no decree could have been passed against the dead man, the decree is void as having been made without substituting his heirs and it cannot, therefore, be executed. The second objection was that the properties against which execution is sought to be levied were not properties belonging to the firm and, therefore, execution cannot proceed as against those. The learned Subordinate Judge has rejected both the objections raised by the Appellants before him. He had the plaint in the suit filed in the High Court before him and he held that the decree was against the firm of Bonamali Dinabandhu Pal. As an executing Court he could not go behind the decree and he relied for that proposition on the case of Gorachana Haldar v. Profulla Kumar Roy . With regard to the second point he was of opinion that under Or. XXI, r. 50, the Plaintiff firm is entitled to execute their decree against the properties which were attached before judgment during the life-time of Dinabandhu Pal who raised no objection whatsoever to the attachment whether these properties were of the Defendant firm or the personal properties of Dinabandhu Pal.

The learned Advocate for the Appellants contends that the Appellants are entitled to succeed in their appeal on either of the two grounds. The first ground that he urged was that the decree was void as having been passed against a dead man. It is hardly necessary to repeat that the rule allowing a person to sue a firm in the name of the firm is only a short way of describing the Defendants. The suit is really brought against the members of the firm. There are certain other provisions in Or. 30 of the Code of Civil Procedure relieving the Plaintiffs from taking certain steps with regard to service of notice or the substitution of the heirs of a partner, if he happens to the during the pendency of the suit. The relevant rule that we need refer to at present is r. (4) of Or. 30. That rule, however, applies in terms where the members of a firm consist of two or more persons. The question is what rule should apply if a firm consists of only one person, or in other words, if one person carries on business in the name or style other than his own name. This is covered by r. 10 of Or. 30 which provides that “any person carrying on business in a 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.” The question is what would happen if a person carrying on business in the name of a firm dies during the pendency of the suit. It cannot be disputed that if a man dies before any suit is instituted against him, the suit would be infructuous as having been brought against the dead man who used to carry on business under an alias. As I understand it, the position of a person carrying on business in a firm-name is only that of a person who has got an alias and a Plaintiff desiring to sue him can sue him in his other name. If during the continuance of the suit that person dies, it is necessary, in my opinion, to bring his legal representative on the record to have a proper decree made in the suit. If the Plaintiff fails to do so, then the decree is made against a dead man, having a different name from his own proper name, and in that case the decree would be an absolute nullity. The point raised in this case is free from authority and Dr. Sen Gupta says that after his research he has not been able to find any case actually governing the position. It appears, however, that there is a cognate rule under the Rules of the Supreme Court in England which is Or. 48A, r. 11. No decided case has been cited in the last edition of the Annual Practice of 1929 on the question as to what would happen on the death of a person carrying on business in a firm name. The learned Editors give the following note at page 862: “After the death of a person carrying on business in a name other than his own, no action can be brought against the firm for, e.g, a firm's debt co nomine. Proceedings would have to be instituted against the executors.” This confirms me in the view already indicated that the suit would be really against the person, not in his proper name but in the assumed name or an alias.

The learned Advocate for the Respondent, Mr. Roy Choudhury refers to r. (4) of Or. 30 and contends that where on the face of it the decree is against a firm and it was not brought to the notice of the High Court that it was a one-man firm, then r. (4) would apply and the decree should be considered as a valid decree; and he further contends, as the learned Subordinate Judge appears to have held, that the matter whether the decree is a valid decree or a void decree having been passed against a dead man, cannot be enquired into by the executing Court under the authority of the Full Bench case referred to by the Subordinate Judge. In my judgment, the Full Bench case lays down the exact proposition that where the decree is a nullity on the ground that the Court had no jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person to make the decree, the executing Court is entitled to refuse to execute the decree on the ground that it was made without jurisdiction. In this case if the person against whom the decree was made was already dead at the time of the decree, it can hardly be said that the Court had any jurisdiction in respect of the Defendant's person. In that case the decree would undoubtedly be a decree made without jurisdiction and would be a nullity and, in my opinion, the executing Court can enquire into the question whether the decree would be a nullity or not. In this case, the Appellants alleged in the Court below that Dinabandhu had died during the pendency of the suit in the High Court and that he was the sole proprietor of the firm. The Respondents decree-holders, on the other hand, alleged that the firm was not a one-man firm but that there were two partners, Dinabandhu and his brother Jagabandhu Pal. If the fact is established that the firm Bonamali Dinabandhu Pal consisted of two or more members, then it cannot be disputed that Or. 30, r. 4 will come to the assistance of the Plaintiff firm, assuming that Dinabandhu died during the pendency of the suit before the decree. This question, however, has not been investigated by the learned Subordinate Judge. Before the matter can finally be decided, this question should be gone into and as the Respondent did not admit that Dinabandhu actually died before the decree was made, that question will also be enquired into.

The next contention that is raised on behalf of the Appellants that these properties were the personal properties of Dinabandhu and not the assets of the firm really contradicts the first point that has been raised by Dr. Sen Gupta, because if it is a one-man firm, the creditors may proceed against the properties whether it was personal property or the firm's property.

There is, however, another point on which the Appellants must fail with regard to this claim of theirs. The properties against which the decree-holders want to proceed in execution were attached before judgment when Dinabandhu Pal was admittedly alive. He never raised any objection that the property could not be attached for the debt of the firm. What Dr. Sen Gupta seems to urge was that there were documents which showed that these properties were purchased by some ancestor of Dinabandhu and, therefore, were not the assets of the firm. Even assuming that the properties were so purchased, there can hardly be any question that Dinabandhu treated them as the assets of the firm and that the properties became the assets of the firm by reason of the fact that he did not raise any objection to these properties being liable for the debts of the Plaintiff firm. The Appellants who appeared as legal representatives of Dinabandhu can hardly raise this question against the decree-holders proceeding in execution against these properties.

It is necessary to mention one other point. It was argued by the Respondent that the present question does not fall within sec. 47 of the Code. His contention was that the Appellants did not come as legal representatives of the firm of Bonamali Dinabandhu Pal but that they came as legal representatives of Dinabandhu Pal alone. That point is well answered by the Appellants by saying that although the suit was in the firm-name of Bonamali Dinabandhu Pal, it was really against Dinabandhu Pal by his second name and, as a matter of fact, they came before the Court as legal representatives of Dinabandhu Pal and, therefore, they could raise this question under sec. 47.

The result is that the order of the Subordinate Judge is set aside and the case sent back to him for taking evidence on both sides on the question as to whether the firm of Bonamali Dinabandhu Pal had two or more partners at the time when the suit of the Plaintiff firm was brought against it and secondly, whether Dinabandhu Pal died after the suit and before the decree made by the High Court. The lower Court will then proceed with the matter as indicated after coming to findings on the points stated above.

Costs in this appeal will abide the result—the hearing-fee being assessed at five gold mohurs.

S.K Ghose, J.:— I agree.

P.C

Hari Bandhu Pal v. Hari Mohan Saha

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Hari Bandhu Pal v. Hari Mohan Saha

Comments