Execution against deceased partner's estate upheld; absence of prior knowledge defeated the Order XXX Rule 3 objection.

Where prior knowledge of a partner's death or dissolution is not proved, the proviso to Order XXX Rule 3 CPC does not require service of summons on every partner, and the objection to the suit on that ground fails. The Court also held that Order XXI Rule 50 CPC is wide enough to permit execution of a decree against the estate of a deceased partner through his legal representatives, and sub-rule (4) does not exclude the operation of sub-rule (2). The appellant's narrower construction was rejected because it would wrongly shield the deceased partner's estate from liability for the decretal debt. The decree-holder was therefore entitled to proceed in execution against the legal representatives.

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Issues: (i) Whether the decree-holder had prior knowledge of the death or dissolution of the partnership so as to require service of summons on every partner under the proviso to Order XXX Rule 3 of the Code of Civil Procedure, 1908; (ii) Whether a decree passed against a firm could be executed, under Order XXI Rule 50 of the Code of Civil Procedure, 1908, against the estate of a deceased partner through his legal representatives.

Issue (i): Whether the decree-holder had prior knowledge of the death or dissolution of the partnership so as to require service of summons on every partner under the proviso to Order XXX Rule 3 of the Code of Civil Procedure, 1908.

Analysis: The question turned on conflicting affidavits as to whether the decree-holder knew, before institution of the suit, that the deceased was a partner and had died. On the materials, the Court found it impossible to say that the lower Court's finding on lack of knowledge was wrong. In the absence of proof of prior knowledge, the proviso requiring service on each partner was not attracted.

Conclusion: The finding of no prior knowledge was upheld, and the objection based on Order XXX Rule 3 failed.

Issue (ii): Whether a decree passed against a firm could be executed, under Order XXI Rule 50 of the Code of Civil Procedure, 1908, against the estate of a deceased partner through his legal representatives.

Analysis: The Court held that sub-rule (4) of Order XXI Rule 50 did not abrogate sub-rule (2), and that the rule was wide enough to cover execution against a deceased partner's estate through his legal representatives. The construction suggested by the appellant would leave the deceased partner's estate wholly immune from liability for the decretal debt, which the Court found unjust and unsupported by the wording of the rule.

Conclusion: Order XXI Rule 50 permitted leave to execute the decree against the legal representatives of the deceased partner, and the appellant's construction was rejected.

Final Conclusion: The decree-holder was entitled to proceed in execution against the deceased partner's estate, and the appeal failed.

Ratio Decidendi: Where prior knowledge of dissolution is not shown, the proviso to Order XXX Rule 3 is not attracted, and Order XXI Rule 50 is broad enough to permit execution of a firm decree against the legal representatives of a deceased partner.

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