Decree against deceased proprietor of a proprietary concern is a nullity and cannot be executed under Order XXX Rule 10 CPC

A suit filed against the proprietor of a proprietary concern after the proprietor's death is against a non-existent person, so any decree obtained on that basis is a nullity. A proprietary concern is not a separate juristic entity, and Order XXX Rule 10 CPC applies only to the extent the nature of the case permits; it does not turn such a concern into a partnership firm or justify applying Order XXX Rule 4 CPC to a deceased proprietor. The decree could not therefore be executed, and the execution objection was correctly upheld.

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Issues: Whether a suit instituted against the proprietor of a proprietary concern after his death could sustain a valid decree and whether such decree was executable by invoking Order XXX Rule 10 of the Code of Civil Procedure, 1908.

Analysis: A proprietary concern is not a juristic entity distinct from its proprietor; a suit by or against such concern is in substance a suit by or against the proprietor. If the proprietor had already died before institution of the suit, the real person against whom the claim lay was no longer in existence, and only the legal representatives could be proceeded against. Order XXX Rule 10 of the Code of Civil Procedure, 1908 extends the applicability of Order XXX to proprietary concerns only insofar as the nature of the case permits, and it does not convert a proprietary concern into a partnership firm or justify application of Order XXX Rule 4 of the Code of Civil Procedure, 1908 to a dead proprietor.

Conclusion: The decree passed against the deceased proprietor was a nullity and could not be executed; the objection in execution was rightly upheld.

Ratio Decidendi: A suit instituted against a deceased proprietor of a proprietary concern is a suit against a non-existent person, and Order XXX Rule 10 of the Code of Civil Procedure, 1908 does not authorise execution of a decree so obtained by treating the concern as if it were a partnership firm.

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