Fazl Ali, J.These two appeals as well as civil Revision No. 152 of 1938 arise out of an execution proceeding and may be dealt with together.

2. The points which arise in these cases will be clear from the following statement of facts. The appellants are all descendants of one Bimbadhar Sahu. He had five grandsons, namely, Natobar, Bhramarbar, Achut, Kanduri and Anadi who were admittedly at one time members of a joint family. In 1923 Natobar, Bhramarbar, Achut and Kanduri, as members of the firm Padam Sahu & Co., addressed a letter to respondent 1 in which they stated that for the purpose of carrying on the business with the respondent on behalf of the above-named firm they had appointed Natobar Sahu as manager and they requested the respondent to pass orders to the effect "that Natobar may carry on all work in the manner in which Padam (uncle of Natobar) had been managing the trade business." "When this letter was written, the fifth grandson of Bimbadhar, namely, Anadi, was dead, but it is not disputed that his son Kapil was living jointly with the writers of the letter. About the same time Bhramarbar, Achut and Kanduri also executed a general power of attorney in favour of Natobar giving him extensive powers.

3. In 1928 the respondent obtained a decree for a sum of Rs. 12,000 odd against "Padam Sahu & Co., represented by its managing director Natobar Sahu" and this decree was after, wards upheld on appeal. Before the appellate decree was passed, there was a partition in the family, but with that we are not concerned, as the decree which is being executed was passed when the family was joint. After the decree Natobar died and his two sons who are respondents 2 and 8 in the appeals were substituted in his place on llth February 1932. The decree-holder also succeeded in substituting the appellants as judgment-debtors by applying to the Subordinate Judge at Cuttack to whom the decree had been transferred for execution, but he subsequently vacated the order mainly on the ground that the application should have been made to the Subordinate Judge of Berhampore who had passed the decree.

4. In doing so, however, he made some observations about the merits of the application also, but it is clear that they were merely in the nature of obiter dicta. Subsequently respondent 1 applied to the Subordinate Judge of Berhampore to bring on the record the appellants as legal representatives of Natobar Sahu and thereafter transmit the decree for execution to the Court of the Subordinate Judge at Cuttack. This petition was granted and hence these appeals.

5. Appeal No. 26 has been preferred by Bhramarbar and his son Binode, and Achut and his son Lokenath. Appeal No. 31 has been preferred by three minor sons of Kanduri Sahu, who had died in June 1927, and a minor son of Anadi Sahu who had died in 1921. All the appellants have also preferred an application in civil revision against the order of the learned Subordinate Judge so that they may not be prevented from challenging it, if it is found that no appeal lies from his order.

6. In granting the application of respondent 1, the learned Subordinate Judge has referred to Order 21, Rule 50 and Section 50, Civil P.C., and made the following observations:

I have adhered to the view that all the respondents are members of a Hindu law trading firm to which the provisions of Order 21, Rule 50, Civil P.C., apply. Even if we hold that respondents 8 to 11 (the minor appellants) cannot be made so liable and that the said rule does not apply to them, they can be brought on record as legal representatives u/s 50, Civil P.C. The definition of legal representative in Section 2, Clause (11), Civil P.C., is wide enough to include them. The entire body of coparceners should be deemed to be the legal representatives of Natobar who carried on the business of the family as the manager.

7. The question to be decided is whether the view taken by the learned Subordinate Judge is correct. The appellants belong to a trading community and it has not been disputed before us that at the time when the decree under execution was obtained, they had, joint family business which was carried on in the name of Padam Sahu & Co. The first question to be considered is whether Order 21, Rule 50 is applicable to the present case.

8. Mr. Roy on behalf of respondent 1 contends that it is applicable and relies on the decision of this Court in Nathuni Prasad v. Radha Kishun Dutt AIR 1940 Pat. 149 and Satchidananda v. Prayag Sah AIR 1930 Pat. 205. There is no doubt that both these cases were decided on the footing that Order 21, Rule 50 applies to a joint Hindu firm and if these decisions have to be followed, there can be no doubt that the learned Subordinate Judge was right in bringing these persons on the record.

9. What Order 21, Rule 50 substantially provides is this: where a decree has been passed against a firm in the firms name, it can always be executed against any property of the partnership. It may also be executed against a person who has appeared in his own name in the suit under Order 30, Rule 6 or who has admitted on the pleadings that he is a partner, or who has been adjudged to be a partner. It may also be executed against any person who has been individually served as a partner with a summons and has failed to appear. Where, however, the decree is sought to be executed against any other partner, the decreeholder must apply for leave to execute the decree against him. If such person disputes his liability, the Court may direct an issue to be determined whether he was a partner or had held himself out to be a partner of the defendant firm. Now, it appears that in the Lahore High Court a provision has been inserted in Order 30, Rule 1 to the effect that the rule applies to a joint Hindu family trading partnership also.

10. Therefore, in cases decided in that High Court, no difficulty has ever arisen in the case of a joint Hindu family, because the Courts have assumed that members of a joint Hindu family which carries on trading business form a partnership and the procedure laid down in Order 21, Rule 50, Clause (2) is applicable to a decree obtained against them. The question, however, which is disputed before us is whether in the absence of a rule corresponding to the rule of the Lahore High Court that provision can be applied to a Hindu joint family firm which is not strictly speaking a partnership firm. It is to be noticed that Order 21, Rule 50 relates to execution and must be read with those rules of Order 30 which relate to suits by or against firms or partnerships.

11. In Lalchand Amonmal Vs. M.C. Boid and Co., Buckland Ag. C.J., referred to one of his previous decisions in which he had dealt with the scope of Order 30 in these words:

Order 30, as is well known, is taken from the rule of the Supreme Court in England and it is in terms of Order 48A. There can be no question that when Order 48A was introduced into the rules of the Supreme Court in England, it was not in the mind of anybody that it would or Could be applied to Hindu joint family business, and I think one may say without the slightest fear of contradiction that the only form of partnership or firm which was present to the minds of those responsible for the rule was a contractual partnership such as is well understood.

12. The same view has been taken in several other cases and seems to be in consonance with the definition of partnership as given in the Partnership Act. Section 4 of the Act defines partnership as the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all, and it is also stated that persons who have entered into partnership with one another are called individually partners and collectively a firm and the name under which their business is carried on is called the firm name. Section 5 of the Act makes the matter still more clear because it runs as follows:

The relation of partnership arises from contract and not from status; and, in particular, the members of a Hindu undivided family carrying on a family business as such...are the partners in such business.

13. Thus strictly speaking such rules of Order 30 as relate to partnerships will not be applicable to joint Hindu family business, unless these rules are amplified to cover such a case. I will now proceed to consider whether the order of the learned Subordinate Judge can be justified on any other ground. Order 30 purports to relate to suits by or against firms and persons carrying on business in names other than their own. Order 30, Rule 10 provides that:

Any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules under this order shall apply.

14. It is to be observed that this rule does not enable a person carrying on business in a name or style other than his own to sue in that name. All that it provides is that he can be sued in that name, the reason being that persons who deal with him in his assumed name should not be debarred from suing him in that name, because he has assumed that name in dealing with them.

15. In Chidambaram Chettiar v. National City Bank of New York AIR 1936 Mad. 707, Venkatasubba Rao J., has held that Order 80, Rule 10 applies only to a single individual who carries on business or trade in an assumed name and in expressing this view he has relied on the fact that Order 30, Rule 10 is modelled on Order 48(a), Rule 11 of the English Rules and it has been held in England that that rule applies only to a single individual.

16. With that view I agree subject to this qualification only that there is nothing to prevent this rule being applicable to those cases where more persons than one carry on business in an assumed name, though strictly speaking they are not partners. Such a case cannot arise in England, but in India the members of a joint family who do not form a contractual partnership in the strict sense of the term do often carry on business in an assumed name.

17. In Srikant Lal v. Sidheswari Prasad AIR 1937 Pat. 455 while dealing with the position of the managing member of a joint Hindu family, I expressed the view that a joint Hindu family being a legal person according to Hindu law lawfully re-presented by and acting through the managing member or head thereof is included ordinarily in the term a person. This view is in consonance with the views of some of the other High Courts also and to that view I still adhere. That being so, I think that Rule 10 of Order 30 applies to a joint Hindu family-trading firm also.

18. Now, if this view is correct, the name Padam Sahu & Co., against whom the decree was obtained was merely a compendious name for all the members of the family. This family acted through Natobar Sahu so long as he was alive, but when he died all those who were represented by Natobar Sahu will be regarded as his legal representatives. The expression legal representative has been defined in Section 2, Clause (11) as follows:

Legal representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

19. In Gyan Datt and Others Vs. Sada Nand Lal and Others it was held that this definition is wide enough to cover a coparcener who gets property by survivorship on the death of a coparcener who sues and is sued in a representative character.

20. In Nagappa Nadar v. Karuppiah Nadar AIR 1925 Mad. 456 it was held that where a managing member sues and the suit relates to a joint family estate it is really a suit In a representative character for all the members of the family. Therefore when he dies, the next managing member is the person on whom would devolve the representative character and he can therefore come in as the legal representative. It follows from this decision that where there is no managing member appointed after the death of the last managing member, all the members of the family may be regarded as his legal representatives, because the deceased managing member represented their interest in the suit.

21. In the present case the sons of Natobar Sahu have already been substituted in the execution proceedings and no question is raised so far as they are concerned. As I have already stated Bhramarbar Sahu and Achut Sahu had themselves held out to respondent 1 that Natobar Sahu would represent them in their dealings with him and that they were also members of Padam Sahu & Co.

22. I do not therefore consider that any difficulty can arise with regard to these two persons also. The decree was obtained against Padam Sahu & Co. which was only an assumed name for a number of persons including Bhramarbar Sahu and Achut Sahu. Binode and Lokenath who are the sons of these persons, and Alekh Chandra Sahu, Indramani and Hari Kishun, who are the sons of Kanduri, must also be held to have been rightly brought on the record, because they were interested in the joint family business with the decree-holder Kanduri Sahu being a party to the letter to which reference has been made by me.

23. It was contended that Kanduri Sahu had died in 1927 before the date of the decree and therefore his sons cannot now be brought on the record. But the decree was against Padam Sahu & Co., and this, I have already said, was a compendious name for the entire group of persons on whose behalf business was carried on with the decree-holder. I think therefore that the decision of the learned Subordinate Judge must be upheld with regard to all these persons.

24. The case of Kapil Sahu, however, stands on a slightly different footing. Anadi Sahu had died in 1921 and Kapil Sahu is still a minor. Anadi Sahu being dead was no party to the letter written to the decree-holder or to the power of attorney executed in favour of Natobar Sahu. It has been pointed out to us that the assets of Padam Sahu & Co. may not be co-extensive with the assets of the entire joint family and so it is contended that it is possible that Anadi Sahus son may not have been benefited by the business of Padam Sahu & Co. If the family was joint, it is not probable that Kapil Sahu would not have been a member of the joint family trading firm, but as the decree-bolder has not placed before the Court sufficient evidence to charge Kapil Sahu with liability, I would, while dismissing the appeal of the other appellants with costs, allow his appeal. I would however make no order as to costs in his favour. It is unnecessary to deal with the civil revision, because the case was argued by both parties on the assumption that the order of the learned Subordinate Judge was appealable and that being so, no application in revision lies.

Yarma J.

I agree.