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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
ERANEE et al. v. N.USSERWANJEE.
D. G., Colombo, 23,289.
Action on foreign judgment—Partnershiptransaction—Deathofoneof
several partners—Right of surviving partner or’ partners to continuethe action—Legal representatives of deceased■ partner need hot be joined—Prescription—“ Absence • beyond seas ”—Presence ofagentor
attorney — Constructiveinhabitancy — Insufficiency — Prescription
Ordinance (No. 22 of 1871), ss.7,11, 14,and 15.
On the death of one of two or more partners, the right to sue onany partnership transaction survivestothe survivingpartneror
partners; the legal representativesofthe deceasedpartneror
partners are not necessary partiestosuch asuit.
The appointment of an attorneyonagent toact forapersonin
Ceylon does not remove the disability constituted by “ absencebeyond seas" under section 14 of Ordinance No. 22 of 1871.
Queers.—Whether aninterlocutoryorder which has not been
appealed against can be opened upon the hearing of the appeal onthe final judgment.
HE plaintiffs, who were at onetimecarrying onbusinessin
partnership, obtained judgment as such partners, on June 25,
1902, against the defendant, in the High Court at Fort William,Bengal, for a sum of Rs. 14,448 and interest.
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1008. The plaintiffs, on April 21, 1906, through their attorney, institutedMonk 20. an action . on ■ the said judgment in the District Court. On
November 80, 1906, the first plaintiff died, and an application.
was made by the surviving plaintiff, under section 393 of the CivilProcedure Code, to continue the action alone. This was opposedBy the defendant, who contended that the legal representativesof the deceased plaintiff ought also to be joined in the action asplaintiffs.
Grenier, D. J., held as follows on this point (March 25, 1907): —
'* The two plaintiffs on the record obtained judgment against thedefendant in .the High Court of Calcutta on June 25, 1902, for thesum of Bs. 14,448.92, with interest at 6 per cent- thereon. Theplaintiffs were partners, and sued as such in that Court. The judg-ment and decree of the High Court of Calcutta describe them aspartners, and there can be no question therefore that the judgmentwas in favour of the plaintiffs as partners. The plaintiffs institutedthis action in the District Court of Colombo upon the foundationof the judgment of the High Court of Calcutta on April 21,1906. Since the institution of the action the first plaintiffdied at Calcutta on November 30, 1906. This fact is admitted.The question is whether the cause of action survived to the secondplaintiff on the death of his co-partner. I am of opinion that it did,and that, under section 393 of the Civil Procedure Code, the secondplaintiff is entitled to proceed on with the action without joiningthe legal representatives of the. deceased partner. The judgmentupon which this action is based is one in favour of the plaintiffs asco-partners, and the suit in the Calcutta High Court was presumablyin respect of an obligation which the defendant has contracted withthe plaintiffs as co-partners. The action in this Court proceededupon the judgment of that Court, and the defendant’s liability isclearly one not to the plaintiffs as individuals but as co-partners. Itmay be .that at the date of the institution of .the action in this Courtthe partnership was no longer in existence, but that, I presume,did not prevent the plaintiffs from joining in an action for therecovery of a partnership debt. I understand the general rule of• law to be that in the case of the death of one of two co-partners thecause of action survives , to the other, and the authorities cited byMr. Jayewardene seem to be in point. Lord Lindley, in his bookon Partnership, is by no means sure that the rule has been alteredafter the passing of the new Judicature Act, and that .the legalrepresentative of the deceased partner must sue and be sued.I allow the prayer of the petition, and make order under section 393that the action do proceed at the instance of the petitioner, thesecond plaintiff, and that the costs of this application be costs in thecause. ”
The case subsequently came on fOr'hearing before F. R. Dias, Esq.,Acting District Judge, and the following issues were framed:—
Has the power of attorney in favour of T. A. J. Noorbhaiceased to be operative as and from the date of the first plaintiff’sdeath, and can the second plaintiff maintain this action in ittfpresent form?
Is the plaintiffs’ cause of action prescribed?
Do the facts set out in paragraph 7 of the plaint take theplaintiffs’ case out of the operation of section 11, or any othersection of the Prescription Ordinance, No. 22 of 1871?
4. Was the plaintiffs’ alleged disability removed by the faot oftheir having on April 11, 1903, appointed Carimjee Jafferjee, aresident of Colombo, their attorney in Ceylon for the purpose ofsuing on this judgment?
The Acting District Judge (F. R. Dias, Esq.) held as follows(September 9, 1907) on the issues:—
“ The two plaintiffs M. B. Eranee and B. R. Eranee were co-partners, carrying on business as rice merchants in Calcutta underthe style of B. M. Eranee & Co., and in respect of some dealingswhich the defendant had with that firm they sued him in the HighCourt at Calcutta, and on June 25, 1902, judgment was signedagainst him for Rs. 14,448.8.2 with interest and costs. The presentaction has been brought upon that judgment, which, with interestand costs, amounted, to Rs. 19,998.72 at the date of its institution,namely, April 24, 1906.
“ Neither of the plaintiffs has ever been in this country, and theyare represented locally by Mr. Noorbhai, whom they appointed theirattorney for the purpose of suing the defendant and taking allother necessary steps against him in that connection by a power ofattorney executed on January 10, 1906. The debt was one due tothe partnership, but at the time the plaintiffs signed their powerof attorney they had ceased to be partners. Some months after theaction was filed the .first plaintiff died, and in March, 1907, uponapplication made by the second plaintiff, with due notice, to defend-ant and after full discussion, the Court made an order under section393 of the Code directing the action to proceed at the instanceof the second plaintiff alone. That order has not been appealedagainst.
“ The defendant admits he has not paid any part of the plaintiffs’claim, but he denies his liability to pay it now on two grounds:(i.) The action is prescribed under section 11 of Prescription Ordi-nance; and (ii.) it cannot be maintained in its present form as thefirst plaintiff is dead, and his power of attorney has ceased to beoperative, and Mr. Noorbhai has no right to represent his legalrepresentatives, who are not now before the Court.
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'• The second point is .scarcely in issue now, as it is covered by
March 20- the order of my predecessor, Mr. Grenier, above referred to. Thedefendant is bound by it, and it is not competent for me to re-openit should I consider it necessary to do so. To the reasons given bythat Judge I need only add that, the Indian judgment being one inrespect of a debt due not to the two men in their individual capacity,but as members of a partnership, on the death of one of the partnersthe right to sue on it, just as in the case of a contract with the firm,survived to the surviving partner or his representative, and therepresentatives of the first deceased partner would have no right atall to join in such action. In the present case it seems to me that thedeath of the first plaintiff, after the filing of the action, makes nodifference whatever. If he had died before, it cannot for a momentbe doubted that the proper person to sue would be the secondplaintiff, so that in our present circumstances we may very welltreat the case as if the first plaintiff was never a party to it, withoutprejudice to the rights of anybody. The power of attorney, toMr. Noorbhai was not given by the two plaintiffs jointly, but jointlyand severally, so that he is entitled to act under it for one withoutthe other. Hence, in my opinion, the objection to the maintenanceof the action in its present form fails.
" As regards the question of prescription, the defendant seeks tobring the case within the three-year limit provided by the 11thsection of the Ordinance, while the plaintiffs bring it under thesix-year limit in section 7, on the ground that the foreign judgmentis of the nature of a written contract; I cannot accept thislatter contention. When a person obtains a judgment againstanother, he has a right, if he chooses to do so, to bring,an actionon the judgment for the money due. That right arises from theexistence not of a contract between the two parties, but of a, circum-stance (viz., the recovery of the judgment) which enables theplaintiff to sue the defendant; and the judgment itself is nothingmore than evidence of that circumstance.
“ Our Ordinance is silent as to actions founded on foreign judg-ments, so that I think the defendant is right in applying section 11,which provides for all casus omissi. He is, however, faced withthis difficulty, namely, that prescription has never begun to runagainst these plaintiffs, they being always ‘ absent beyond theseas ’—One of the disabilities provided for in section 15. It hasbeen argued that this, does not apply to persons in the position ofthe plaintiffs, who have never been in this country, but only tosuch as have been here and gone away temporarily. No authorityhas been cited for putting such a strained construction on plainwords, which mean no more than the being outside the territoriallimits of a particular country, without any reference to the person’spresence there before.
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“ It was further urged that, even if the plaintiffs were under the 1908.disability relied upon, it was removed by their appointment of March 20.Mr. Carimjee Jafferjee as their attorney on April 11, 1903, to suethe defendant on this very judgment. Through him they wereconstructively present in this country, so that prescription beganto run against them as from that date, and this action was filedjust too late.
“ The Appeal Court decision in'the case of Ponniah v. Nagu Lebbe1is an authority which the defendant cannot possibly get over. Itwas there held that there was only one way by which absence froma place can be terminated, namely, by going to th.at place, and. thatconsequently the appointment of an attorney to act in Ceylon did notremove the disability constituted by absence beyond the seas underour Ordinance section 14.
“ The defendant fails on all the issues that have been framed,and I enter decree for second plaintiff as prayed with costs.
The defendant appealed.
M. de Saram, for him.—The order allowing the actionto be continued by the surviving plaintiff was bad; the legal-representatives of the deceased partner are necessary parties, becauseat the date of action the partnership had been dissolved and theplaintiffs were suing in their individual capacities. Whatevermight have been the law some time ago, since the passing of theJudicature Act the legal representatives of. a deceased partner arenecessary parties to an action in respect of a partnership transaction(Lindley on Partnership). On the question of prescription, itcannot be said that the plaintiffs were “ absent beyond seasduring the prescriptive period, inasmuch as they had an attorneyhere during that time who could have sued. The presence of theattorney in the' Island is equivalent to the presence of theprincipal. He might have brought the action, if he so desired.
The decision in Ponniah v. Nugu Lebbe2- is not supported by anyother authority.
H. A. Jayewardene, for the plaintiff, respondent.—The order ofGrenier, D.J., is right. The law is clear that where one of severalpartners dies the cause of action survives to the surviving partneror partners alone, and not to the surviving partners and the legalrepresentatives of the deceased partner. (Williams on Executors,pp. 486, 638,' and 1512; Dicey on Parties, Rule 24; McLean v.
Kennard,3 Gobino Prasad v. Chandar Selihar;4 Bechardass v.Sagunbaksh.3) On the question of prescription; the decision inPonniah v. Nugu Lebbe is supported by the decision of the Privy
> (1906) 9 N. L. R. 368.*(1874) L. B. 9 Ch. App. 346.
(1906) 9 N. L. B. 368.*(1887) 9 Allahabad. 486.
s (1892) 17 Bombay 6.
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1808.Council in Ruchimaboye i>. Mottichund,1 where it was held that
March 20. what the law contemplated was the actual presence of a party' within the jurisdiction of the Court, and not a mere constructivei-nhn.Viitii.nny through an attorney or agent.
M. de Saram, in reply.
Maroh 20, 1908. Hutchinson C.J.—
In this case two plaintiffs sued the defendant to recover from hima sum of. money, which, by decree dated June 25, 1902, in an actionin the High Court of Judicature at Fort William, the defendant hadbeen ordered to pay to the plaintiffs suing in the name and style of
M. Eranee & Co., and the plaintiffs said that aT the timn thecause of action arose they were residents in Calcutta, and eversince that date have continued to reside in India. Before theanswer was filed the first plaintiff died. By his answer the defend-ant said that the alleged disability of the plaintiffs referred to in.the plaint had been removed by their appointment, on April 11,1903, of an attorney resident in Colombo to sue the defendant on thejudgment relied on in the/ plaint, and that therefore the plaintiff’saction was prescribed; and he also said that by reason of the death*of the first plaintiff the power of attorney given to the attorney whoacted for the plaintiffs in this action had ceased to have effect.Afterwards the surviving plaintiff applied to the Court for an orderthat the action might proceed at his instance alone. This wasopposed by the defendant; but on March 25, 1907, the DistrictJudge made an order allowing the application, and that order wasnot appealed against. The action then went on for trial, andjudgment was given for the plaintiff.
The points urged by the appellant are the following:—
First.—That the order made by the District Court allowing theaction to proceed at the instance of the plaintiff was wrong.
I will deal with that first.
The plaintiff objects that the defendant cannot now re-open thepoint decided by the Judge, viz., that the cause of action survivesto the surviving plaintiff, and he referred to the cases reported in2 Appeal Court Reports 259 and 10 N. L. R. 4:1. I do not feelquite sure about that, and I prefer to decide the first point on theground that the cause of action did survive to the surviving plaintiff.The judgment of the Calcutta Court was in favour of the two plain-tiffs as a partnership firm. It seems from the pleadings that beforethis action was brought the partnership had been dissolved; butin this action the plaintiffs sued on that judgment, which was ajudgment in favour of the firm, and I think it is clear that whenone of them died, the benefit of the judgment survived to the
* S Moore's Indian Appeals 284.
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urvivor, without prejudice to any question as to what the rights.nd liabilities may be of the survivor as between him and theepresentatives pi the deceased plaintiff.
The next point taken by the appellant was that the disability ofabsence beyond the seas ceased when the plaintiffs, although stillabsence beyond the seas, appointed an attorney to sue for them inCeylon. I think a person, who is in fact absent beyond the seas,does not cease to be so by the appointment of an agent to act forhim in Ceylon, and it appears there is authority for that, viz.,5 Moore’s Indian Appeal Cases 234 and 9 N. L. B. 368.
The next argument for the appellant was that the power ofattorney given by the plaintiffs ceased to have any effect upon thedeath of one of the plaintiffs; that it was a joint power, and that theattorney could not act under it after the first plaintiff’s death.
The power was given to enable the attorney to bring an action,the action being for a debt due to the plaintiffs as partners. If thecause of action survive, I think that the power for the attorney togo on with the action also survives. In my opinion the causeof action did survive, therefore the right of the attorney to go onwith it also survives. I would therefore dismiss the appeal withcosts.
I agree. The judgment being in favour of two persons as partnersit was necessary for them both to join in suing upon it, althoughsubsequent to the judgment the partnership had been dissolved.As between the parties to the judgment it is still considered apartnership asset. When, therefore, one of the plaintiffs, died, Ithink it is clear from the authorities, both English and Indian, whichhave been cited to us, that although his interest in partnershipproperty passed to his executor, yet the remedy in respect of thatproperty survived to the surviving partner alone, and that it couldbe brought in his name alone, it being neither necessary norcompetent for the executor to join with him in suing.
I agree with my Lord in what he has said on the other two pointstaken by the appellant. I do not wish to add anything regardingthem.
ERANEE et al. v. NUSSERWANJEE