The State Trading Corporation v. Eastern Province Transport Co. Civ. Cas. 40-D-68; 10/9/72. Onyiuke, J.

The State Trading Corporation v. Eastern Province Transport Co. Civ. Cas. 40-D-68; 10/9/72. Onyiuke, J.

The decree holder, the S.T.C., had instituted a suit against the defendant firm for Shs. 21,249/20 being the balance of the price of goods sold and delivered to the defendant. Judgment was given in its favour. An application was then made for execution of the judgment against the applicant, Andrew Sypron, he being the sole proprietor of the defendant firm. An order was made admitting the execution and directing that “notice to show cause” under Ord. 21 r. 35 of the C.P.C. be issued. Spyron did not appear at the hearing and the judge issued a warrant of arrest against him under 0.21 r. 35 (2). The decree holder applied for him to be committed to civil prison. In that proceeding it was argued on his behalf that the judgment was against the Eastern Province Transport Co. and not against him and that he “was in no way interested in the firm at the time that the cause of section arose”. He then applied for an adjournment so that he might file an application to set aside the execution-proceedings. An order was therefore made releasing him pending the determination of the intended application. He then filed the present. Application to set aside the execution-proceedings. He averred, in his affidavit, that he was not the Eastern Province Transport Co. and that he was never personally served with the summons or any other process.

            Held: (1) “Order 29 of the Civil Procedure Code regulates actions by and against firms and persons carrying on business in names other than their own. ‘Firm’ is defined in s. 2 of the Business names (Registration) Ordinance Cap. 213 as “an unincorporated body of two more individuals or one or more individuals and one or more corporations.” The registration of such firms under the Business Names (Registration) Ordinance (Cap. 213 does not convert such firms into distinct legal entities separate from the partners thereof. Order 29 enables actions to be brought by or against such partners in their firm name instead of in their individual names. Rule 10 Order 29 however 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 the rules under this Order shall apply” (Underlining supplied).” (2) “It is my view that where a firm consists of one person a judgment against that firm is tantamount to a judgment against that person since he is the only person carrying on business in that name. The firm name o the sole proprietor is in the nature of an ‘alias Order 21 Rule 49 which deals with execution of decree against a firm presupposes a partnership of two or more persons. I am satisfied that the applicant was the sole proprietor of the Eastern Province Transport Company at the time the cause of action arose and I hold that judgment against the Eastern Province Transport Company was judgment against him personally.” (3) “If I am wrong in my view of the law I shall then proceed to consider the effect of leave obtained under Order 21 Rule 35. That Rule Provides as follows: “(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention as a civil prisoner of a judgment-debtor who is liable be arrested in pursuance of the application, the court may, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not be committed to prison. (2) Where appearance is not made in obedience to the notice, the court shall if the decree-holder so require, issue a warrant for the arrest of the judgment-debtor.” (4) “It was held, [interpreting] the Indian Civil Procedure Code, that where a decree has been passed against a firm and an application was made under that Rule to execute the Decree against a particular person as an individual partner of that firm, no separate application for leave to execute the decree against that person need be put in as the application asking for execution against the particular person necessarily implied

Such a prayer for leave to proceed against him as an individual partner. Bombay Company Ltd. Karachi v. Kahan Singh and Another A.I.R. 1931 Lahore 736.’ (5) “I hold that leave obtained under Order 21 Rule 35 dispenses with the necessity to obtain leave to proceed against the named partner under Order 22 Rule 49(2).” (6)Application dismissed and applicant committed to prison as a civil debtor.