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TMI Blog1941 (12) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants admit the allegations regarding the decree being obtained in the Lahore Court and its assignment in favour of defendant 1, the defendants however deny that it has been fully satisfied, and further, on behalf of defendant 1 it is pleaded that in any event by reason of the conduct of the plaintiff company it is estopped from denying the validity of the decree. The firm of Prohladdas Bhagwandas is comprised of members of a joint Hindu family and is represented in this suit by Rajaram its karta. It is convenient hereafter to refer to this entity as the firm. The firm owned the Elphinstone Theatre, Lahore, which it leased to the plaintiff, who in turn sublet it to defendant 3. A receiver of the firm filed Suit No. 1-498 of 1935 in the Lahore Court seeking to recover from the plaintiff and defendant 3, arrears of rent. Pending the proceedings the receiver was discharged and the joint family firm, in its name, was brought upon the record or substituted for the receiver as the plaintiff in the suit. The record was not amended by including as plaintiffs each individual member of the co-parcenary or that Rajaram the karta represented the firm but the name of the firm alone was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentation of the winding-up petition was part of the cause of action in the suit. The managing agents of the plaintiff company are Messrs. J.F. Madan. Mr. B.J. Madan is a director of the company and a partner of the managing agents firm. In the plaint it is alleged that the plaintiff company and defendant 3 (the defendants in the Lahore suit) before and after the decree paid various sums exceeding the amount decreed, and since the decree defendant 3 had paid approximately Rs. 5000 towards the amount due. All payments made were not recorded or certified towards satisfaction, and by reason of such payments the decree was completely satisfied and adjusted and nothing remained due by the plaintiff company. Further, at the date of the assignment of the decree to defendant 1, credit had been given for Rs. 10,960 paid by the plaintiff company towards the amount due for rent, but credit was not given for the sum of Rs. 6,000 mentioned, paid by defendant 3, and other unspecified sums paid by the plaintiff company. Upon all these sums being taken into consideration, no monies would be due and payable by the company or by defendant 3 under the decrees. The plaint further alleges that, as n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecrees. In the first part of his evidence he said he took with him a sum of Rs. 7,000 for this purpose, which he had obtained from the coffers of the managing agents' company and not from the company itself. In Lahore he saw Mr. Rajaram and agreed with him that both decrees would be satisfied by the payment of Rs. 5,000 of which Mr. Madan said Rs. 1,000 was paid at once. At one part of his evidence he said that the balance of Rs. 4,000 was paid to Mr. Rajaram the following day. Mr. Madan's evidence was interrupted by an adjournment art the end of the first day he was in the witness box. When he re-entered the witness box the second day the witness said that the remaining Rs. 4,000 was not paid by him as he had previously stated, but was remitted to Mr. Rustomji at Lahore, who was acting in the capacity of legal adviser for Mr. Madan to pay to Mr. Rajaram. He said that no receipt was obtained from Mr. Rustomji, nor was any receipt supplied by defendant 2 firm nor by Mr. Rajaram who promised to send one but did not do so, and who said also that he would enter up full satisfaction for the payment. Witness said that he took it for granted that this would be done by Mr. Rajaram, as Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettlement of which Mr. Madan gave evidence when he was in the witness box. Satisfaction has not been entered up by defendant 2, nor has the plaintiff company taken any step to do this, and, according to the record, at the date of the assignment the sum of Rs. 4,412 remained due. Mr. Madan was not a reliable witness, and his evidence was unsatisfactory. He contradicted himself upon vital matters on more than one occasion. He did not answer questions in a frank and straightforward manner, was hesitant, and frequently endeavoured to avoid giving an answer. In his story of the settlement of the amounts due under the two decrees for Rs. 6,000 he gave two different versions of how the payment of Rs. 4,000, part of the above amount, was made, and the method of settlement to which he testified is at variance with three other suggested modes by which the indebtedness of the plaintiff company was discharged. I have no hesitation in rejecting his testimony, and I hold that the decree has not been satisfied, and that payment has been made under it only to the extent for which satisfaction has been entered. In any event, the onus is upon the plaintiff company to establish that the decree has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the decree was that it constitutes a cause of action, and as that was done in the Cawnpore district, a substantial portion of the cause of action arose in that district, and the Court had jurisdiction to entertain the suit. Jawahir v. Neki Ratn [1915] 37 All. 189 is a decision to the same effect. In Indian Provident Co., Ltd. v. Govind Chandra Das [1923] 27 CWN. 359 a decree in one Court was remitted to another Court in which the decree-holder applied for execution. The judgment-debtor filed a suit in the Court to which the decree had been remitted to set it aside. It was held there was jurisdiction for such Court to entertain the suit, and after referring to the two Allahabad decisions quoted above, it was observed at page 364 as follows: "In this case it is true that no property of the plaintiffs had been attached within the jurisdiction of the Sylhet Court, but the defendant applied for execution of the decree and it was against the threatened execution that the suit was brought and an injunction was asked for. The Sylhet Court was entitled to issue an injunction and in order to grant that relief, it had the power to go into the question whether the ex parte decree was obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sue or to be sued in the firm name. It was argued that this provision of the Code applied only to a contractual partnership and does not apply to a joint family carrying on business as a firm and not as a contractual partnership. Reference was made by learned counsel on behalf of the plaintiff company to a number of authorities in support of his contention, his argument being that the joint family firm is in the same position as a minor who sues or is sued in his own name, without being represented either by a next friend or a guardian adlitem. This question can be shortly decided. Under the rules of the Lahore High Court, which apply to the Courts of subordinate jurisdiction in the Punjab, an explanation has been added to Order 30, Civil Procedure Code, that the rule applies to a joint Hindu family trading partnership. In Alma Ram v. Umar Ali [1910] AIR 1940 Lah. 256 and Firm Nand Gopal Om Parkash v. Firm Mehnga Mal Kishori Lal [1940] AIR 1910 Lah. 425 it was held that in the Punjab a joint Hindu family trading firm may sue and be sued in the name of the firm. It follows that the decree in Suit No. 1/489 of 1935 which defendant 2 firm obtained against the plaintiff company is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal under section 96 of the Code as being an ex parte decree, (2) an application for a review under order 46, rule 1, of the Code, (3) an application under order 9, rule 13, to set aside the decree; the time for which the proceeding under this rule should be taken is 30 days from the date of executing any process to enforce the decree, or from the time of knowledge, and (4) a suit alleging the decree was obtained by fraud. I am not satisfied that the present suit lies at all in the absence of an allegation of fraud, but having come to the conclusion that the suit fails for the reasons which I have already expressed, it is not necessary for me to record any finding in regard to the matters to which I have just referred. There were 8 issues settled, which are as follows: (1)Is the suit maintainable in this Court? (2)Is the decree in favour of Prahladdas Bhugwandas a nullity? (3)If the answer to (2) be "No"-Is the assignment of the said decree in favour of Kapoor inoperative or invalid in law? (4)Was the decree completely satisfied or adjusted before such assignment? (5)Is the substitution of Kapoor in execution proceedings invalid? (6)Is the plaintiffs claim barred by es ..... X X X X Extracts X X X X X X X X Extracts X X X X
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