Rangildas Vithaldas Vs. Burjorji D. Lowji - Court Judgment

Mirza, J.

1. [His Lordship after stating facts as above proceeded:] Defendant No. 2 has not appeared. Mr. Jassoobhoy of the firm of Messrs. Purnanandand Jassoobhoy has appeared as amicus curiae and pointed out that the service of the notice is not proper. He has stated before me that he has not seen defendant No. 2 since the decree was passed against him and that he took inspection of the deed of assignment under instructions given to him by an agent of defendant No. 2; that thereafter when he asked the agent for instructions as to whether he should accept the notice under Order XXI, Rule 16, the agent informed him that he had no instructions from his principal on that point and could not authorise the attorneys to accept service of the notice.

2. Rule 309 of our High Court Rules provides that notice under Order XXI, Rule 16, should be served in accordance with form No. 43 appended to the rules. Under form No. 43 the notice is addressed to the party personally and he is required to appear in person or by advocate(O.S.) or an attorney before the sitting Judge in Chambers on the date specified in the notice. The notice here is in accordance with formNo. 43.

3. It is contended by Mr. Thakoredas that as Messrs. Purnanand & Jassoobhoy have not obtained a discharge as defendant No. 2's attorneys and have after the disposal of the suit continued to act for him by taking inspection of the deed of assignment they must be deemed to be authorised to accept the service of the notice on behalf of their client and their refusal to accept service of the notice cannot avail their client who must be regarded as being duly served although as a matter of fact his attorneys have refused to accept service of the notice. I am unable to accede tothis contention. The retainer of an attorney ordinarily cornea to an end when the suit is ended. During the pendency of the suit there is an implied authority on the part of the attorneys to act on behalf of their client in matters appertaining to the suit including the acceptance of notices and other processes. There is no such implied authority, in my opinion, after the suit has ended,

4. Messrs. Purnanand & Jassoobhoy have, after he termination of the suit, acted on behalf of defendant No. 2 for taking inspection of the deed of assignment, This isolated act on their part, in my opinion, does not in itself coustitute them attorneys for defendant No. 2 for the purpose of accepting on his behalf any process in execution of the decree passed against him. In any case instructions having been withdrawn before the service of the notice it would not be competent to Messrs. Purnanand & Jassoobhoy to accept service of any notice under Order XXI, Rule 16, on behalf of defendant No. 2, They have acted rightly, in my opinion, in refusing to accept service of the notice. It was not necessary for the attorneys to have obtained a discharge from the Court. A discharge is necessary during the pendency of the suit and not after it has ended. After the suit is over the attorneys are ipso facto discharged so far as the suit is concerned and would need fresh authority from their clients to act for them in execution proceedings.

5. In my opinion the service of the notice is not proper and the matter must stand adjourned sine die to enable the applicants to serve the notice on defendant No. 2 personally. There will be no order as to costs.