Grille, C.J:— In the year 1926 the firm of Umar Haji Karim, respondent, obtained a decree against the appellant. The decree was a consent decree and several infructuous attempts were made to execute it. This present appeal arises out of an attempt made in the year 1933 after the Partnership Act came into force. The judgment-debtor contended in the executing Court that since the firm was not registered it was incompetent to execute the decree. The executing Court agreed with this contention and consequently did not come to any decision on various other issues raised and held that the execution application could not be entertained. This decision was reversed by the Additional District Judge by his order dated 14th July 1937. So far as is material for the decision of this appeal, the order of the learned Additional District Judge was based an the ruling in I.L.R (1937) Nag. 84 (’37) 24 A.I.R 1937 Nag. 125 , 167 I.C 604 , I.L.R (1937) Nag. 84 and the case was remanded for disposal on its merits. Against this order the judgment-debtor appealed to this Court and the matter was heard by Niyogi, J., who concurred in the order of the learned Additional District Judge and dismissed the appeal. He gave leave however to appeal under the provisions of the Letters Patent and that is how the question comes before us. What was decided in I.L.R (1987) Nag. 84 (’37) 24 A.I.R 1937 Nag. 125 , 167 I.C 604 , I.L.R (1937) Nag. 84 was that a right acquired before the commencement of the Partnership Act is not affected by anything in that Act and that S. 74 of that Act saves the rights of unregistered firms where such rights had been acquired before the commencement of the Act. This view has received additional support in I.L.R (1940) Nag. 170 (’40) 27 A.I.R 1940 Nag. 137 , 190 I.C 245 , I.L.R (1940) Nag. 170 and in I.L.R (1940) Nag. 648. (’40) 27 A.I.R 1940 Nag. 367 , 190 I.C 574 , I.L.R (1940) Nag. 648 Both of these decisions are subsequent to the order of Niyogi, J., which is dated 30th November 1938. The leave to appeal however was limited by Niyogi, J., in the following words:
Leave to file Letters Patent Appeal granted on the point whether “other proceeding” occurring in Section 69(3) of the Partnership Act, include an execution proceeding.
2. The learned counsel who appears for the appellant is apprehensive that the limited leave to appeal would exclude him from contending that S. 74 of the Act has no application and contends that the whole of the matter which was before the learned Judge is now open for appeal and that the Judge had no right to limit the subject-matter of the appeal, and, in support of this contention, he relies on a recent pronouncement of the Chief Justice of Madras in I.L.R (1941) Mad. 775 (’41) 28 A.I.R 1941 Mad. 481 , 196 I.C 87 , I.L.R (1941) Mad. 775 , (1941) 1 M.L.J 80 (F.B) at p. 779.
3. We will deal with this point later but for the present content ourselves with saying that we do not conceive it to have been the intention of Niyogi, J., to limit the appeal to a point which would be purely academic in view of the fact that the argument of the respondent throughout has been that any contention based on S. 69 of the Act is negatived by the saving S. 74. We therefore placed no bar on the appellant's learned counsel as to the matter to be argued.
4. The learned counsel admits that the decisions of this Court of the year 1940 subsequent to the case on which the learned Additional District Judge and Niyogi, J. relied go far to negative any contention of his that the Act was intended to be retrospective. We would also point out that the decision in 58 ALL. 495 (’36) 23 A.I.R 1936 All. 3 , 160 I.C 277 , 58 All. 495 , 1935 A.L.J 1245 on which reliance was placed in the Courts below is now no longer good law and has been specifically dissented from in I.L.R (1941) ALL. 311. (’41) 28 A.I.R 1941 All. 178 , 194 I.C 344 , I.L.R (1941) All. 311 , 1941 A.L.J 107 Neither in relying on sub-s. (3) of Section 69 of the Partnership Act, is it contended that the opening words of the sub-section can refer to all execution proceedings as such. Execution proceedings will stand or fall by the applicability of S. 69, sub-ss. (1) and (2), to the suits out of which execution proceedings arise. What is contended before us is that the words “or other proceeding to enforce a right arising from a contract” in sub-s. (3) refer to a particular class of decrees, namely consent decrees, which are by their very nature contracts, and authority for this proposition is sought in 43 Cal. 217 (’16) 3 A.I.R 1916 Cal. 816 , 31 I.C 13 , 43 Cal. 217 , 19 C.W.N 1228 where it was laid down by Jenkins, C.J that a contract of the parties is none the less a contract because there is superadded to it the command of a Judge, which is the case in consent decrees but not in decrees arrived at after contest. Niyogi, J. held that the point taken would be a sound one if the consent decree had been attacked as a contract; that is to say, if any application had been made to attack it on the ground of fraud, undue influence or mistake which would vitiate the contract. Admittedly no such allegation has ever been made or is made now, and the only allegation is that it was the intention of the Legislature that an unregistered firm should be under the same disability in respect of this particular limited kind of decrees as it is in respect of bringing suits. We do not consider that is the intention of the section or that the words used can bear that implication. The opening words are:
The provisions of sub-ss. (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect……
5. In our opinion the words “other proceeding to enforce a right arising from a contract” are to be taken as sui generis of a claim of set-off; that is to say, when sub-ss. (1) and (2) relate to the right of bringing a suit the opening words of sub-s. (3) relate to the right of setting up a defence and have no relation to the entirely different question of a claim to enforce the execution of a decree. Not only may a claim of set-off be a partial defence to a suit but a claim arising out of a contract may be set up in defence to negative the right of suit altogether, and it is these claims in defence which, in our opinion, are placed under the same disabilities as the right to bring a suit at all in so far as unregistered firms are concerned. We do not conceive that there could be any intention on the part of the Legislature, in drafting sub-s. (3) in the manner it has, to deal with two such entirely different matters as a claim of set-off without reference to any other defence and execution proceedings in respect of a particular type of decree. In our opinion, sub-s. (3) of S. 69 has no application to the execution of decrees, whether consent decrees or decrees after contest. Moreover, there is no reason why in execution proceedings a consent decree should be treated differently from any other decree. In so far as a consent decree remains a matter of contract, it is to be attacked in a suit for that purpose or by an application to the Court which passed the decree. For purposes of execution a consent decree is subject to the rule that the contract merges in the decree as much as in a decree after contest, and we are in respectful agreement with the phrase in which Niyogi, J. has enunciated the principle—“In execution proceedings the decree-holder is not concerned with the contract but only with such rights as have been granted to him by the decree.”
6. Even were it to be held that the phrase “other proceeding to enforce a right arising from a contract” does apply to execution proceedings arising out of a consent decree sub-s. (3) is amenable to the provisions of S. 74 in the same way as are the provisions of sub-ss. (1) and (2) of S. 69. An execution proceeding is as much a legal proceeding or remedy in respect of any right, title, interest, obligation or liability as is the suit itself, and on the assumption that S. 69(3) applies to consent decrees the interest of the decree-holder arose long before the passing of the Partnership Act. As we have stated, the decree was passed in the year 1926, and we have no doubt whatsoever as to the correctness of the decisions of this Court which on no less than three occasions have laid down that the Act is not retrospective. No exception, if it should be found in S. 69(3), can prevail against the section expressly devised to save rights which existed at the time of the commencement of the Act, and it is the rights that are protected, not merely pending proceedings. The appeal accordingly must fail.
7. On the question whether a Judge of this Court in granting leave to appeal under the provisions of the Letters Patent is prevented from limiting the appeal to certain points we must express our respectful dissent from the view pronounced by the learned Chief Justice of the Madras High Court. The learned Chief Justice stated (I.L.R (1941) Mad. 775 (’41) 28 A.I.R 1941 Mad. 481 , 196 I.C 87 , I.L.R (1941) Mad. 775 , (1941) 1 M.L.J 80 (F.B) at page 779):
Clause 15, Letters Patent, permits of an appeal from a Single Judge of this Court sitting on the appellate side where the Judge declares that ‘the case is a fit one for appeal.’ It is no function of the learned Judge to say what points are fit for appeal. It is for him to say whether ‘the case’ is a fit one for appeal. If he considers that it is, he can give the certificate, but he must leave the matter there. It is for the higher appellate Court to say what are the questions it will allow to be raised.
8. If this dictum were to be followed the result, in our opinion, would be that a Judge who before granting leave only considered that one particular point among many was the one which merited further consideration might find, if he were unable to indicate that point, that it was a point that the higher appellate Court did not allow to be raised at all, and the whole object of granting leave to appeal would be stultified. In our opinion, it is as competent for a Judge of this Court to declare on what particular point of law he allows permission to appeal as it is for him to refer a case for opinion to a Divisional Bench, and it is not, in our opinion, fitting that a position might arise in which the unexpressed opinion of a Judge of this Court that a point requires decision by a Bench of Judges might possibly be shut out by that Bench without that Bench being in a position to know what the particular point is. With all respect. We are unable to read into the Letters Patent a prohibition against the Judge who grants leave to appeal on deciding in what respect he does grant leave, and it might even be said that any such limitation on his powers might be considered derogatory to his position. The result is that the appeal fails and is dismissed with costs.
9. Appeal dismissed.