JUDGMENT Grimwood Mears, C.J. and Piggott, J.
1. On the 9th of April, 1915, a firm, Bhairon Prasad and Mahadeo, borrowed Rs. 2,500 on a promissory note, the money, having been lent by; one Gajadhar. On the-next day the firm borrowed a similar amount from another firm, and both these notes subsequently were purchased by Kanhaiya Lal, the respondent in this matter. On the 10th of August, 1916, Kanhaiya Lal brought a suit for the recovery of the Rs. 5,000 and interest. On the 28th of November, 1916, the suit was compromised by one Mangli Prasad. At that date Mangli Prasad had a younge? brother Phul Chand and a 'still younger brother, by name Suraj Karan, who was a minor. Mangli Prasad, purporting to act as a member of the firm, agreed in writing to pay Rs. 6,120 in certain instalments, assented to the insertion- of the usual default clauses in the compromise and set aside certain immovable property which he declared to be hypothecated to the due discharge of this debt. In the document of compromise he stated that Phul Chand and Suraj Karan were his brothers, and he spoke of them as joint owners with himself in the property specified at the foot of the deed, and also as members of the firm. That compromise was embodied in a decree of the 28th of November, 1916. Kanhaiya Lal, no doubt, was confident that he had got a decree which, if default were made, could readily be put into execution. Default was made, and on the 30th of July, 1917, the respondent applied for execution. On the' 8th of August he asked for an injunction restraining the transfer of, or creation of charges over, this property, and on the 18th of August this property was attached On the 8th of September and again on the 12th of September, 1917, Phul Chand for himself and his younger brother filed two applications. The first application was to set aside the decree. The second application was to set aside the attachment on the ground that the property sought to be attached, and which was the subject of hypothecation in the compromise decree, was wholly and entirely the property of Phul Chand and Suraj Karan and the firm had no concern with it at all, and that they; the two younger brothers, were separate from Mangli Prasad Objections were lodged by the respondent on the 3rd and 10th of November, and amongst these objections the present respondent stated that, it was not necessary in the suit to disclose the names' of all the persons who were the partners. He further stated that Mangli Prasad had acted throughout as karta of the joint Hindu family, that he and his two brothers were joint, that the business was the business of the family, and the property com-prised in the compromise decree was property of the joint family. The grounds of the application of the 12th of September alleged, as we have stated, a separation by Phul Chand and Suraj Karan from Mangli Prasad; it gave no date of that separation and no particulars other than the assertion that as the result of that separation Mangli Prasad had been given a block of property elsewhere as his share, whilst they had got other property, comprising inter alia the property sought to be taken in execution.
2. It appears from the very scanty record that lies before us that the learned Subordinate Judge apparently grouped the two applications of the 8th and 12th of September together. We have studied with great care, and with the assistance of Mr. Dube and Mr. Lalit Mohan Banerji, the order that he passed, because it is agreed that, if it should transpire that he in fact decided as a relevant matter that which at a later stage (in May, 1919) the learned Subordinate Judge was again asked to decide, the decision of Mr. Justice Walsh, to which we will refer later, will be the decision to be preferred.
3. The exact text of the order is to be found at' page 140 of I.L.R. 44 Allahabad. The order sheet of the 6th of September, 1918, runs as follows:
The decree-holder has obtained a simple money decree against defendant No. 1, that is, the firm Bhairon Prasad and, Mahadeo. The present objectors were not parties to the decree. Mangli Prasad appeared for the firm. These objectors arc brothers of Mangli Prasad. They were never disclosed in the plaint as partners. The property attached has not been proved to be the property of the firm. Under the circumstances the attached property must be the property of the objectors as well as that of the judgment-debtor, Mangli Prasad, representing the firm. Ordered, 2/3rd share in the property attached be released; parties to bear their own costs.
4. Now it is necessary to consider what the parties were contending for. Kanhaiya Lal, the decree-holder, wanted the ;attachment of property which, under the compromise decree, had been hypothecated by the eldest of the three brothers on the assertion that it was property which belonged to the firm and that the three brothers constituted a joint family. 'The order of the Judge involves, first of all, a finding by him that the. status of the family had undergone a change. He evidently accepted the story of Phul Chand and Suraj Karan that there had been a separation. He appears to have believed whatever evidence was-put before him that their status had altered from that of joint tenants to tenants-in-common, because he treated this property, not as the objectors wished it to be treated, as belonging wholly to them, but treated it on the basis that each brother had an equal one-third share. He must have decided that the two younger brothers were not partners in the firm, and he also decided clearly that it was not proved that the property, though represented by Mangli Prasad to be the property of the firm, was in truth the property of the firm. It is on those findings, erroneous as they may have been, that the order of the 6th of September, 1918, was based, and its propriety cannot be challenged now. The decree-holder, dissatisfied as he may well have been, did not appeal from that order, nor did he, under Order XXI, Rule 63, make this question, as to whether that property comprised in the compromise decree belonged to the firm or not, a matter for a suit. It is said that the decree-holder could not have appealed; but we are by no means satisfied with that. We cannot decide that matter because it is conceded that he certainly had a right to proceed under Order XXI, Rule 63. Instead of taking a course in which there would have been regular pleadings and definitely formulated issues, he, on the 14th of September, applied to the Judge for, review and submitted to the Judge that the order of the 6th of" September was an erroneous one and asked for a reconsideration of the matter. The learned Subordinate Judge is said to-have taken no steps in this matter until the 3rd of May, 1919, on which day he passed an order saying that he had already decided that the objectors were not parties to the decree, and the property not proved to be the property of the, firm, that there was no new ground disclosed- for a review, and that there1 was no mistake apparent on the face of the record. On these "rounds he dismissed the ex parte application. Thereupon, two days later, the decree-holder made an application asking that the liability of the opposite parties might be determined' and that leave might be given to execute the decree against them. On the 23rd of June, 1920, the Subordinate Judge disposed of that application, holding that the order of the 6th of September, 1918, did not operate as a bar to this application and that it might be entered upon and decided. He went into the evidence on either side and made an order favourable to Kanhaiya Lal, the present respondent. The objectors appealed to this Court and the matter .was considered by Mr. Justice Wallsh and Mr. Justice Wallach on the 9th of August, 1921. There was a difference of opinion between them, MB. Justice Walsh coming to the conclusion that the order of the 6th of September, 1918, had involved issues on which decisions had been given and that by the application of the 5th of May, 1919, the respondents were seeking to reopen questions which had become final. Mr. Justice Wallach was of opinion that the order of the 6th of September, 1918, did not exclude an application under Order XXI, Rule 50(2).
5. It is in these circumstances that the matter has come up before us, and the question for our determination is, ought the Subordinate Judge to have entertained the application of the 5th of May, 1919? or ought he, without going into the evidence on the merits, to have held himself precluded by virtue of the previous struggle between the parties which was concluded by the order of the 6th of September, 1918?
6. We are of opinion that the judgment of Mr. Justice Wallsh is to be preferred, for these reasons. The position of the respondent when he first sought to obtain execution was as follows:--He could have limited his execution to the partnership property, relying upon the fact that service had been duly effected upon Mangli Prasad, a partner. He might also have proceeded personally against Mangli Prasad. So that he had a dual "remedy by the mere fact of service on Mangli Prasad, i.e., a remedy against the whole of the property of the partnership, and a remedy against the personal property and person of Mangli Prasad. Because of the form of the compromise decree-the respondent naturally sought the property therein pointed out and ho proceeded under Order XXI, Rule 50(1); and we regard his application as being limited exclusively to property which he believed, on the representations of Mangli Prasad, to be partnership property, certain of being attached. When in.. reply to the attachment of the 18th of August Phul Chand and Suraj Karan filed applications, the Judge, before allowing execution, had to be satisfied that the property to be attached was the property of the partnership. Having regard to the form which the applications of the 8th and 12th of September took and the form of the objections of the 3rd; and 10th of November by the plaintiff, it would appear that incidentally but nevertheless necessary to the determination of this question whether the property was the property of the partnership, there was the question of the status of the family and the membership of the firm, and the Judge by the terms of his order sheet and by the statement made by him when dismissing the application for review, does undoubtedly show that he dealt with all those, three matters.
7. As regards the order of the 6th of September, 1918, as we have already said, nobody in either court has had a good word to say for it. It appears to us to be erroneous; but the decision may have been a right one, inasmuch as it must have been dependent upon evidence produced before the Subordinate Judge, which is not before us. The respondent complains that, by that erroneous order of the 6th of September, 1918, he has been grievously injured, and that having paid money for the promissory notes which formed the basis of the action, and having obtained a compromise into which no other business man would have entered, he has been by trickery and process of law deprived of his recourse against what he still undoubtedly believes to be partnership property, and property of a joint Hindu family. Mr. Justice Wallsh, in his judgment, took the line that the respondent was himself largely to blame for this, and we feel there is some force in that observation because it was unwise of him, having got what he considered to be plainly a perverse decision of the 6th of September, to apply for a review to the same Judge. His proper course, if he took the view that the order of the 6th of September was not appealable, was to institute a suit and have the matter carefully and properly threshed out. He did not do that, and such, issues as can fairly be presumed to have necessarily been before the Subordinate Judge and to have been decided by him, have been finally decided, whether such issues were rightly or wrongly decided. That was the position on the 5th of May, and we have already said that we are of opinion, that on that day the learned Subordinate Judge, in going into the matter on the application under Order XXI, Rule 50(2), was going over, as regards some of the issues, the same ground which the previous Judge had covered by his decision.
8. It is quite true, as the respondent has pressed upon us, that successive steps may be taken in execution; that is to say, there is nothing to prevent several applications being made, directed against and linked into partnership of private property. There is nothing to prevent a succession of applications directed against persons who are ascertained to be, or believed to be, partners in the particular venture out of which the decree has arisen. The limitation, however, that is imposed on all these applications is that if there has been a previous application, in which there has been a definite decision affecting a particular piece of property or a particular person, and from that decision, nothing has been done by way of appeal or institution of suit, if either of these methods was available, that decision is a final decision between the parties; and if in any subsequent proceedings the point again becomes material, the parties are bound by that previous decision and the matter cannot be reopened. To that extent, and that extent only, is there limitation on the successive applications in execution. We think that the objection which was taken to the learned Subordinate Judge going into this matter on the 5th of May, which was that he was going to cover, as regards material matters, points which had been discussed and settled finally between the parties in September, 1918, was a right objection, and he ought not to have entertained the application of the 5th of May.
9. The result, therefore, is that we set aside the order of this Court and also the order of the court below, and in lieu thereof we dismiss the application presented by the respondent Kanhaiya Lal under Order XXI, Rule 50(2). Under the circumstances we leave the parties to bear their own costs throughout.