B.C.Barua - for Appellant. Thadani C. J.-This is a second miscellaneous appeal from the order of the learned District Judge, U. A. D., dated 13-1-1950, by which he dis­missed the decree-holder's execution application with costs. [2] The execution application was brought as far back as the 26 5 1942. It was ultimately dis­missed by the learned Special Subordinate Judge, A. V. D. An appeal against the dismissal was preferred to the Court of the Additional District Judge, A. V. D. who allowed the decree to be executed after some amendments, by his order, dated 23-7-1943. An appeal was preferred to the Calcutta High Court against the order of the learned Additional District Judge, dated 28-7-43, and the Calcutta High Court remanded the appeal for a finding upon two points and directed the lower appellate Court to dispose of the appeal on the basis of its findings arrived at on the two points referred to it. [8] The points referred to the lower appellate Court were : "(1) Whether the firm of Ashkaran Panehiram is now competent to execute the decree-and this will involve a further decision 'of the point as to whether, if it is so entitled, whether the previous execution was in order; (2) whether the firm of Robin Brothers was a joint Hindu family concern, as is said by the learned Special Subordinate Judge, or really a partnership firm, as is assumed by the lower appellate Court and if it is a partnership firm, whether under O 2, R. 50, Civil P. C. the decree-holder is entitled to proceed against the parti­cular person;" The Calcutta High Court in its order of remand stated: ''To us it seems that the application for execution which is now pending is defective on more grounds than one. It has been taken as granted by both the Courts below that the firm of Ashkaran Panehiram was dissolv­ed in 1938, and the decree in question wag actually assigned to one of the partners named Routmal Pincha. It has been taken as granted by both the Courts below that the firm of Ashkaran Panehiram was dissolv­ed in 1938, and the decree in question wag actually assigned to one of the partners named Routmal Pincha. The earlier Execution case of 1939 was held to be a proper one inasmuch as it was a step-in-aid of execu­tion taken by the assignee even though there was no notice served under O 21, R. 16, Civil P. C. If as a matter of fact, there has been assignment already, and the assignee has taken out execution of the decree on that footing on the previous occasion, it is difficult to say how an application could now be filed by the original firm which is not legally in existence. We do not ap­preciate the reasoning of the lower Appellate Court that as Routmal Pincha has purchased the goodwill of the firm, the firm itself could be taken to be another name of the individual. Even if he is the owner of the firm, but as the decree has been assigned by the firm to him as individual, the firm would no longer be the owner of the decree, The lower appellate Court sees the difficulty in the situation, and it allows amendment of the petition by substituting the name of the assignee Routmal Pincha in place of the firm. Mr. Bhabesh Chandra Barua who appears for the appellant however, does not support the decision of the lower appellate Court on that ground. The position taken up be him is that the firm is entitled to ignore the assignment altogether and take out execution in its own name, and so far as his client is concerned, he does not want to take advantage of the leave for amendment given by the lower appellate Court. This gives the matter a different complexion altogether. We think that In the circumstances, ft is a matter which requires investigation as to whether the firm is now competent to execute the decree, and this will involve a further decision of the point as to whether if it is so entitled, whether the previous Execution case was in order. This gives the matter a different complexion altogether. We think that In the circumstances, ft is a matter which requires investigation as to whether the firm is now competent to execute the decree, and this will involve a further decision of the point as to whether if it is so entitled, whether the previous Execution case was in order. The other difficulty which was pointed out by the Special Subordinate Judge, as said above, is that although the decree was obtained against Rabin Brothers, which is either a partnership firm or a joint Hindu family business, the present application for execution has been made against an individual named Rabindra Nath Sarma. We thick it requires investigation as to whether it was a joint Hindu family concern as is said by the Special Subordinate judge, or really a partnership firm as has been assumed by the Lower Appellate Court, and if it is a partnership firm, whether under O. 21, R. 50, the decree-holder is entitled to proceed against this particular person." [4] The lower appellate Court, in disposing of the first question referred to it, has proceeded on the footing that as it was admitted that the firm of Ashkaran Punchiram had already assigned the decree to one of their partners called Routmal Pincha, the execution application filed by Routmal Pincha was incompetent. On the second ques­tion, the lower appellate Court came to the conclusion that it was a joint family concern as defined in S. 5, Partnership Act, and that the names of the partners of the form not having been disclosed in the plaint and the members of the joint Hindu family not having been made parties to the suit, the execution of the decree could not proceed against Rabindra Nath Sarma who was not made a party in the original suit, in his individual capacity. [5] It appears to us that the lower appellate Court has not fully appreciated the directions given by the Calcutta High Court. The proper interpretation of h order of the Calcutta High Court is : (1) that the lower appellate Court was first to ascertain-by whom was the first execution brought; if it was not brought by Routmal Pincha on behalf of the plaintiff firm, how would it affect the execution application. The proper interpretation of h order of the Calcutta High Court is : (1) that the lower appellate Court was first to ascertain-by whom was the first execution brought; if it was not brought by Routmal Pincha on behalf of the plaintiff firm, how would it affect the execution application. [6] It is not disputed that the suit was properly brought by the firm of Ashkaran Panchiram under the provisions of O. 30, Civil P. C. against Rabin Brothers. Apparently Rabindra Nath Sarma carried on buBiuess m the name of Rabin Brothers; that is to say, in a name other than his own. It is implied in the order of remand of the Calcutta High Court that if the first execution application was brought by Routmal Pincha, a partner of the plaintiff firm, to execute the decree in the name of the plaintiff firm, then the result of the execution application would not be the same if Routmal had brought the first execution application as an assignee of the decree. Plainly the result would not be the same. As an assignee, relying upon his position as an assignee, as dis­tinct from his position as a partner in the decree-holder firm, Routmal was bound to bring himself on the record under the provisions of O. 21, R, 16, Civil P. C., and then to execute the decree. But if he relied upon his position as a partrer in the decree holder firm, then notwithstanding the assignment of the decree in his favour, it would not be obligatory upon him first to apply under O. 21, R. 16, Civil P. C , for, in a suit brought by a firm in accordance with the provisions of O. 30, the proviso to R. 2 of O. 30 expressly says that the proceedings shall continue in the name of the firm. In other words, when a suit is instituted by a firm, all the proceedings shall continue in the name of the firm, including execution pro­ceedings. [7] We have seen the original record and no-where do we find-neither in the first execution application nor in the subsequent execution appli­cation that Routmal Pincha sought to execute the decree as an assignee. In other words, when a suit is instituted by a firm, all the proceedings shall continue in the name of the firm, including execution pro­ceedings. [7] We have seen the original record and no-where do we find-neither in the first execution application nor in the subsequent execution appli­cation that Routmal Pincha sought to execute the decree as an assignee. As a partner in the decree, holder firm-a position which is not disputed he was entitled to continue the execution proceed­ings in the name of the decree-holder firm in accordance with the proviso to R. 2 of O. 30, Civil P. C., notwithstanding the fact that at a previous stage, the decree in the suit had been assigned by the decree bolder firm to him. It was precisely this aspect of the case which the learned Judges of the Calcutta High Court had in view when they remanded the appeal. All that the lower appellate Court, therefore, was concerned with, was to find out whether the two execution appli­cations made by Routmal Pincha were filed on behalf of the decree-holder firm. The lower ap­pellate Court has made no reference to this point. On examining the records, we find that at no stage had Routmal Pincha filed the execution application in any other capacity than in his capacity as a partner seeking be execute the decree obtained by his firm in accordance with the pro­viso to R. 2 of O. 30, Civil P. C. The question, therefore, of Routmal Pincha seeking to execute the decree as an assignee, did not arise. He had choice of two courses: (l) either to execute the decree as a partner in the firm although the firm bad been dissolved, or (2) to bring himself on the record as an assignee under the provisions of O. 21, R. 16, Civil P. C. and then to execute the decree. Routmal Pincha elected the first course and by reason of the proviso to R. 2, O. 30, Civil P. C., no exception can be taken to it. Routmal Pincha elected the first course and by reason of the proviso to R. 2, O. 30, Civil P. C., no exception can be taken to it. [8] As regards the second point referred to the lower appellate Court by the Calcutta High Court, namely whether the defendant firm, Rabin Brothers, was a partnership firm or a joint Hindu family concern, and whether before the decree could be executed against Rabindra Naih Sarma; an application under o. 21, E. 80, Civil P. C. was necessary, it seems to us that the position is equally simple. [9] The suit was brought by the plaintiff firm upon a hand-note executed by Rabindra Natb Sarma in the name of Rabin Brothers. As an executant of the promissory note, Rabindra Nath Sarma was undoubtedly liable personally. He was made a defendant in the suit. The plaintiff firm sued Rabin Brothers, in whose name the promissory note was executed, as well as Rabindra Nath Sarma who had executed the promissory note. The plaintiff firm was entitled to bring the suit under the provisions of 0. 30, B. 10, Civil P. C. when they found that Rabindra Nath Sarma had executed the hand-rote in a name other than his own. Rabin Brothers were thus liable to be served either through the Manager or partner. The person actually served in the suit was Rabindra Nath Sarma. When a person who has been served in a suit instituted under the provisions of o. 30, if he is neither the Manager nor a partner, he must appear under protest. Par from appearing under protest Rabindra Nath Sarma filed a written statement, and in para. 4 of his written statement, he stated : "The accounts submitted by the plaintiff are wrong. The allegation made by the plaintiff that the defendant made endorsement on the back of the hand rote as token of payment, is vague. Actually on 16-1 80, a portion of it was paid up." In other words, he defended the suit. In bis defence, he did rot say that he had nothing to do with Rabin Brothers. Having regard to his written statement, it is reasonable to suppose that Rabindra Nath Sarma was carrying on business in the name of Rabin Brothers. He was, therefore, personally liable. The question of taking proceedings under O. 21, R. 50, Civil P. C. did not arise. Having regard to his written statement, it is reasonable to suppose that Rabindra Nath Sarma was carrying on business in the name of Rabin Brothers. He was, therefore, personally liable. The question of taking proceedings under O. 21, R. 50, Civil P. C. did not arise. [10] The result is that we set aside the order of the learned District Judge refusing to execute the decree against Rabindra Nath Sarma. We allow the appeal with costs throughout, and order the execution to proceed against Rabindra Nath Sarma. [11] Ram Labhaya J.- I agree, in the con-elusion reached by my Lord the Chief Justice. Appeal allowed.