Khushalbhai R. Patel (t/a Patel Flour Mills) v. Laloobhai A. Patel and others (as partners in Bombay flour Mill), Civ. Sass. 23-D-1960, 9/4/69 Hamlyn J.

Khushalbhai R. Patel (t/a Patel Flour Mills) v. Laloobhai A. Patel and others (as partners in Bombay flour Mill), Civ. Sass. 23-D-1960, 9/4/69 Hamlyn J.

         This was an application by a decree-holder for execution of the decree against a person whose name did not appear upon the pleadings or in the decree itself and it arose in this way. The plaintiff was an individual and filed his plaint in his own name with the addition of the words “trading as Patel Flour Mills”. The defendants were three named individuals who were sued in their individual names” as partners in the firm of Bombay Flour Mill.

 The plaint was filed and all three partners were served individually with a summons for settlement of issue. The matter went to arbitration and an award was made. Eventually a decree was issued and attachment of property was applied for. The advocates for the decree-holder then made application to the High Court after 8 years from the date of the original plaint by way of Chamber Summons supported by affidavits for leave to be granted to execute the decree against a person who had never appeared as a party the rein, one Bhikhabhai Govindbhai Patel, and paragraph 5 of the supporting affidavit was set out in the following manner: - “5. I was not aware that the said Bhikhabhai Govindhbhai was a partner in the partnership firm of Bombay Flour Mills until this information was given to me approximately three months ago by Durlabhbhai Jagabhai Patel, one of the judgment-debtors and I now verily believe that said Bhikhabhai Govindbhai was a partner in the defendant partnership firm during which the plaintiff’s claim arose.”

            Held: “It appears that Bhikhabhai Govindhai (to whom I will refer hereafter as “B.G.”) is a man of some substance, while the partners named from the beginning of the action are all persons of little financial worth it would seem that the decree-holder, finding his judgment to be of nominal value only, now seeks to give it financial worth by filing this somewhat unusual application …… the application was argued before me only upon the basis that the decree-holder, having adopted his mode of filing his case in Court, cannot now seek to bring B.G.” into any execution proceedings at this stage. The allegation of the fact of partnership of B.GH. in Bombay Flour Mills has not so far been argued. Now it seems clear from the Civil Procedure Code that an intending litigant, who desires to sue persons operating as partners, can adopt one of two options. He may jointly sue all partners by name and usually in such case he adds a subscription to show that he sues them as partners of a firm. That subscription may be, “Trading in the name and style of –“, or “partners in the firm of –“, I would add that no particular magic attaches to this subscription, which merely shows that the defendants are sued in their capacity as partners, and its is of course advantageous where any question of agency arises inter se. The other form which a prospective litigant may adopt in draw in his plaint is to sue the firm in the firm name. This is of course provided for by Order 29 of the Local civil Procedure code. In such case there is no need to specify the names of the individuals who constitute the firm; they are the agents for it and are therefore liable for acts done within the terms of that agency. The applicant in the instant case saw fit to adopt the former of these modes of filing. He selected three persons who (and I think this is not in issue) were partners in the firm of Bombay Flour Mills……. No assuming that B. G. was in fact at all material times a partner in this firm, what consequences arise therefrom? The plaintiff has failed throughout to include his name as a person against whom he is proceeding. Can he at this late stage claim that he is a party against whom he is executing his decree? I think that the answer to this question must be found in the form in which the plaintiff originally sued. If he filed his action against the firm as such, omitting all mention of the names of the partners, then he can execute his decree against every partner jointly and severally. It matters not that there may be several partners of whom he was unaware at the time that he opened his proceedings. If they were partners at the time that the cause of action arose, they will be liable in execution, even though their identity was discovered at a late stage. I think that this reading of the matter arises from the provisions of Order 29 Rule 3, where the Code provides for service of the summons, “where persons are sued as partners in the name of the   

firm”, upon one or more of the partners, or at the place of partnership business. There is clearly no need for service in such case upon each of the several partners. Some may even be unaware that an action has been filed against the firm, but all are nevertheless liable under the decree. But I think that the position is rather different in the present case. The plaintiff has sued three persons “as partners in the firm of Bombay Flour Mills”. He has selected three persons as the objects of his action and has (either by design or otherwise) omitted one person whom he now alleges is a partner. He has, in other words adopted a form of election, choosing some and rejecting (even though involuntarily) others. It is of course true that such election might not of itself preclude him from further proceedings against the remaining partners, if limitation does not forbid this; but that is not a matter which is now before me. Having made this election and acted upon it, it seems clear to me that he cannot be heard in these proceedings vary it; nor will the court allow him to retract his earlier decision. Nor can he pray in aid his subscription that he sues these existing defendants “as partners”. [Cases referred to: (1) Karimbhai v. The Conservator of Forests N. D. (1879)4. I.L.R. Bombay 22; (2) Gulam Mustapha Malik v. Madanlal (1930) 58 I. L. R.  Calcutta 624] Application dismissed.