§ Order XXX Rule 1, CPC 1908 (in substance)

(1) Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to such a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.

(2) Where persons sue or are sued as partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons.

§ Four features of the rule

Each shapes how such a suit runs:

• It is permissive. Partners may sue and be sued in the firm name; nothing prevents a plaintiff from naming the partners individually, and in some cases that is the safer course.

• The firm name is a compendious description. It describes the persons who were partners at the time when the cause of action accrued, not those who are partners when the suit is filed. A partner who joined afterwards is not caught merely because his name now appears on the letterhead.

• Business must be carried on in India. The Order applies to persons carrying on business in India; a foreign firm not doing business here is outside it.

• Signature by one suffices. By sub-rule (2), any one of the partners may sign, verify or certify a pleading or document on behalf of all.

§ Order XXX Rule 2, CPC 1908 (in substance)

(1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted.

(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1), all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court may direct.

(3) Where the names of the partners are declared, the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint: provided that all proceedings shall nevertheless continue in the name of the firm.

§ Order XXX Rule 3, CPC 1908 (in substance)

Where persons are sued as partners in the name of their firm, the summons shall be served either —

(a) upon any one or more of the partners; or

(b) at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management of the partnership business there, as the Court may direct;

and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India: provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within India whom he seeks to make liable.

§ Rule 5: the notice that must accompany service

Where a summons is served in the firm name under Rule 3, the person served must be informed in what capacity he is served: whether he is served as a partner, as a person having the control or management of the partnership business, or in both characters.

In default of such a notice, the person served is deemed to be served as a partner.

The rule matters because the consequences differ. A person served as a partner is on notice that a decree may run against him personally; a person served merely as the manager of the business is not, and he is not for that reason made liable.

Rule 4

Where two or more persons are sued as partners in the firm name and any of them dies before institution or during the pendency of the suit, it is not necessary to join the legal representative of the deceased as a party; but nothing in the rule limits or otherwise affects any right which the legal representative may have to apply to be made a party, or the liability of the estate of the deceased partner

Rule 6

Where persons are sued as partners in the firm name, they shall appear individually in their own names, but all subsequent proceedings shall nevertheless continue in the name of the firm

Rule 7

Where a summons is served in the manner provided by Rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued

Rule 8

Any person served as a partner under Rule 3 may appear under protest, denying that he was a partner at any material time; on such appearance the plaintiff may either apply to the court to discharge the party, or proceed against him, and the court shall determine the question at or after the trial

Rule 9

This Order shall apply to a suit between a firm and one or more of its partners, and to a suit between firms having one or more partners in common; but no execution shall be issued in such a suit except by leave of the court, and on an application for such leave the court may give such directions as may be just for the taking of accounts and inquiries

Rule 10

Any person carrying on business in a name or style other than his own name may be sued in that name or style as if it were a firm name, and the provisions of the Order apply so far as the nature of the case permits

§ Rule 8: appearance under protest

The most useful of the group for a person wrongly served. A person served as a partner may appear under protest, denying that he was a partner at any material time, and the fact of his appearance does not make him one.

The plaintiff must then decide: either apply to have him discharged from the suit, or proceed against him, in which case the court determines the question of his partnership at or after the trial.

The rule reconciles two things: the plaintiff should not be shut out merely because he is unsure who the partners were, and a stranger should not be fixed with liability because a writ was served on him.

§ Order XXI Rule 50, CPC 1908 (in substance)

(1) Where a decree has been passed against a firm, execution may be granted — (a) against any property of the partnership; (b) against any person who has appeared in his own name under Rule 6 or Rule 7 of Order XXX or who has admitted on the pleadings that he is, or has been adjudged to be, a partner; (c) against any person who has been individually served as a partner with the summons and has failed to appear.

(2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1)(b) and (c), as being a partner in the firm, he may apply to the Court for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.

§ Against whom execution runs

Three classes without leave, and one with:

• The partnership property, in all cases. A decree against the firm reaches the assets of the firm as such.

• A person who appeared in his own name under Order XXX Rule 6 or 7, or who admitted partnership on the pleadings, or who has been adjudged a partner. His liability is established on the record.

• A person individually served as a partner who did not appear. He had his opportunity and did not take it.

• Any other person alleged to be a partner requires the leave of the court, and where he disputes liability, the court must try and determine the question as it would try an issue in a suit. A person who was never served and never appeared cannot have his personal assets taken on the strength of a decree against the firm without that inquiry.

§ Order XXX does not make a firm a legal person

The whole Order is procedural. It permits partners to litigate under a collective name; it does not confer legal personality on the firm, and it does not alter the substantive law of partnership.

Liability remains that of the partners. Under Section 25 of the Indian Partnership Act, 1932, every partner is liable jointly with all the others and also severally for all acts of the firm done while he is a partner. Order XXX supplies the machinery by which that liability is enforced through a single suit.

Registration matters separately. Section 69 of the Partnership Act bars certain suits by or on behalf of an unregistered firm against third parties, and Order XXX does not cure that bar; a firm that cannot sue under Section 69 cannot sue merely because Order XXX allows suits in the firm name.

The time reference is fixed by the cause of action. Rule 1 speaks of persons who were partners at the time of the accruing of the cause of action, so incoming and outgoing partners are dealt with by the substantive law read with that reference point.