77. Partners.
ORDER 77
PARTNERS
1. Actions by and against firms within jurisdiction. (O. 77 r. 1)
Subject to the provisions of any written law, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction may sue or be sued, in the name of the firm (if any) of which they were partners at the time when the cause of action accrued.
2. Disclosure of partners’ names. (O. 77 r. 2)
(1) Any defendant to an action brought by partners in the name of a firm may serve on the plaintiffs or their solicitor a notice requiring them or him forthwith to furnish the defendant with a written statement of the names and places of residence of all the persons who were partners in the firm at the time when the cause of action accrued; and if the notice is not complied with the Court may order in Form 191 the plaintiffs or their solicitor to furnish the defendant with such a statement and to verify it on oath or otherwise as may be specified in the order, or may order that further proceedings in the action be stayed on such terms as the Court may direct.
(2) When the names of the partners have been declared in compliance with a notice or order given or made under paragraph (1), the proceedings shall continue in the name of the firm but with the same consequences as would have ensued if the persons whose names have been so declared had been named as plaintiffs in the writ.
(3) Paragraph (1) shall have effect in relation to an action brought against partners in the name of a firm as it has effect in relation to an action brought by partners in the name of a firm but with the substitution, for references to the defendant and the plaintiffs, of references to the plaintiff and the defendants respectively, and with the omission of the words "or may order" to the end.
3. Service of writ. (O. 77 r. 3)
(1) Where by virtue of rule 1 partners are sued in the name of a firm, the writ may, except in the case mentioned in paragraph (2), be served–
(a) on any one or more of the partners; or
(b) at the principal place of business of the partnership within the jurisdiction, on any person having at the time of service the control or management of the partnership business there;
and where service of the writ is effected in accordance with this paragraph, the writ shall be deemed to have been duly served on the firm, whether or not any member of the firm is out of the jurisdiction.
(2) Where a partnership has, to the knowledge of the plaintiff, been dissolved before an action against the firm is begun, the writ by which the action is begun must be served on every person within the jurisdiction sought to be made liable in the action.
(3) Every person on whom a writ is served under paragraph (1) must at the time of service be given a written notice in Form 192 stating whether he is served as a partner or as a person having the control or management of the partnership business or both as a partner and as such a person; and any person on whom a writ is so served but to whom no such notice is given shall be deemed to be served as a partner.
4. Entry of appearance in an action against firm. (O. 77 r. 4)
(1) Where persons are sued as partners in the name of their firm, appearance may not be entered in the name of the firm but only by the partners thereof in their own names, but the action shall nevertheless continue in the name of the firm.
(2) Where in an action against a firm the writ by which the action is begun is served on a person as a partner, that person, if he denies that he was a partner or liable as such at any material time, may enter an appearance in the action and state in the memorandum of appearance that he does so as a person served as a partner in the defendant firm but who denies that he was a partner at any material time.
An appearance entered in accordance with this paragraph shall, unless and until it is set aside, be treated as an appearance for the defendant firm.
(3) Where an appearance has been entered for a defendant in accordance with paragraph (2) then–
(a) the plaintiff may either apply to the Court to set it aside on the ground that the defendant was a partner or liable as such at a material time or may leave that question to be determined at a later stage of the proceedings;
(b) the defendant may either apply to the Court to set aside the service of the writ on him on the ground that he was not a partner or liable as such at a material time or may at the proper time serve a defence on the plaintiff denying in respect of the plaintiff’s claim either his liability as a partner or the liability of the defendant firm or both.
(4) The Court may at any stage of the proceedings in an action in which a defendant has entered an appearance in accordance with paragraph (2), on the application of the plaintiff or of that defendant order that any question as to the liability of that defendant or as to the liability of the defendant firm be tried in such manner and at such time as the Court directs.
(5) Where in an action against a firm the writ by which the action is begun is served on a person as a person having the control or management of the partnership business, that person may not enter an appearance in the action unless he is a member of the firm sued.
5. Enforcing judgment or order against firm. (O. 77 r. 5)
(1) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6, issue against any property of the firm within the jurisdiction.
(2) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6 and to the next following paragraph, issue against any person who–
(a) entered an appearance in the action as a partner; or
(b) having been served as a partner with the writ of summons, failed to enter an appearance in the action; or
(c) admitted in his pleading that he is a partner; or
(d) was adjudged to be a partner.
(3) Execution to enforce a judgment or order given or made against a firm may not issue against a member of the firm who was out of the jurisdiction when the writ of summons was issued unless he–
(a) entered an appearance in the action as a partner; or
(b) was served within the jurisdiction with the writ as a partner; or
(c) was, with the leave of the Court given under Order 11, served out of the jurisdiction with the notice of the writ, as a partner;
and, except as provided by paragraph (1) and by the foregoing provisions of this paragraph, a judgment or order given or made against a firm shall not render liable, release or otherwise affect a member of the firm who was out of the jurisdiction when the writ was issued.
(4) Where a party who has obtained a judgment or order against a firm claims that a person is liable to satisfy the judgment or order as being a member of the firm, and the foregoing provisions of this rule do not apply in relation to that person, that party may apply to the Court for leave to issue execution against that person, the application to be made by summons which must be served personally on that person.
(5) Where the person against whom an application under paragraph (4) is made does not dispute his liability, the Court hearing the application may, subject to paragraph (3), give leave to issue execution against that person and, where that person disputes his liability, the Court may order that the liability of that person be tried and determined in any manner in which any issue or question in an action may be tried and determined.
6. Enforcing judgment in action between partners, etc. (O. 77 r. 6)
(1) Execution to enforce a judgment or order given or made in–
(a) an action by or against a firm in the name of the firm, against or by a member of the firm; or
(b) an action by a firm in the name of the firm against a firm in the name of the firm where those firms have one or more members in common,
shall not issue except with the leave of the Court.
(2) The Court hearing an application under this rule may give such directions including directions as to the taking of accounts and the making of inquiries as may be just
7. Attachment of debts owed by firm. (O. 77 r. 7)
(1) An order may be made under Order 49, rule 1, in relation to debts due or accruing due from a firm carrying on business within the jurisdiction notwithstanding that one or more members of the firm is resident out of the jurisdiction.
(2) An order to show cause under the said rule 1 relating to such debts as aforesaid must be served on a member of the firm within the jurisdiction or on some other person having the control or management of the partnership business.
(3) Where an order made under the said rule 1 requires a firm to appear before the Court, an appearance by a member of the firm constitutes a sufficient compliance with the Order.
8. Actions begun by originating summons. (O. 77 r. 8)
Rules 2 to 7 shall, with the necessary modifications, apply in relation to an action by or against partners in the name of their firm begun by originating summons as they apply in relation to such an action begun by writ.
9. Application to person carrying on business in another name. (O. 77 r. 9)
An individual carrying on business within the jurisdiction in a name or style other than his own name may be sued in that name or style as if it were the name of a firm, and rules 2 to 8 shall, so far as applicable, apply as if he were a partner and the name in which he carries on business were the name of his firm.
10. Applications for orders charging partner’s interest in partnership property, etc. (O. 77 r. 10)
(1) Every application to the Court by a judgment creditor of a partner of an order under section 25 of the Partnership Act 1961 (Act 135) (which authorizes the High Court or a Judge thereof to make certain orders on the application of a judgment creditor of a partner including an order charging the partner’s interest in the partnership property), and every application to the Court by a partner of the judgment debtor made in consequence of the first mentioned application must be made by summons.
(2) The Registrar may exercise the powers conferred on a Judge by the said section 25.
(3) Every summons issued by a judgment creditor under this rule, and every order made on such a summons, must be served on the judgment debtor and on such of his partners as are within the jurisdiction.
(4) Every summons issued by a partner of a judgment debtor under this rule, and every order made on such a summons, must be served–
(a) on the judgment creditor; and
(b) on the judgment debtor; and
(c) on such of the other partners of the judgment debtor as do not join in the application and are within the jurisdiction.
(5) A summons or order served in accordance with this rule on some only of the partners of a partnership shall be deemed to have been served on all the partners of that partnership.
ORDER 77
PARTNERS
1. Actions by and against firms within jurisdiction. (O. 77 r. 1)
Subject to the provisions of any written law, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction may sue or be sued, in the name of the firm (if any) of which they were partners at the time when the cause of action accrued.
2. Disclosure of partners’ names. (O. 77 r. 2)
(1) Any defendant to an action brought by partners in the name of a firm may serve on the plaintiffs or their solicitor a notice requiring them or him forthwith to furnish the defendant with a written statement of the names and places of residence of all the persons who were partners in the firm at the time when the cause of action accrued; and if the notice is not complied with the Court may order in Form 191 the plaintiffs or their solicitor to furnish the defendant with such a statement and to verify it on oath or otherwise as may be specified in the order, or may order that further proceedings in the action be stayed on such terms as the Court may direct.
(2) When the names of the partners have been declared in compliance with a notice or order given or made under paragraph (1), the proceedings shall continue in the name of the firm but with the same consequences as would have ensued if the persons whose names have been so declared had been named as plaintiffs in the writ.
(3) Paragraph (1) shall have effect in relation to an action brought against partners in the name of a firm as it has effect in relation to an action brought by partners in the name of a firm but with the substitution, for references to the defendant and the plaintiffs, of references to the plaintiff and the defendants respectively, and with the omission of the words "or may order" to the end.
3. Service of writ. (O. 77 r. 3)
(1) Where by virtue of rule 1 partners are sued in the name of a firm, the writ may, except in the case mentioned in paragraph (2), be served–
(a) on any one or more of the partners; or
(b) at the principal place of business of the partnership within the jurisdiction, on any person having at the time of service the control or management of the partnership business there;
and where service of the writ is effected in accordance with this paragraph, the writ shall be deemed to have been duly served on the firm, whether or not any member of the firm is out of the jurisdiction.
(2) Where a partnership has, to the knowledge of the plaintiff, been dissolved before an action against the firm is begun, the writ by which the action is begun must be served on every person within the jurisdiction sought to be made liable in the action.
(3) Every person on whom a writ is served under paragraph (1) must at the time of service be given a written notice in Form 192 stating whether he is served as a partner or as a person having the control or management of the partnership business or both as a partner and as such a person; and any person on whom a writ is so served but to whom no such notice is given shall be deemed to be served as a partner.
4. Entry of appearance in an action against firm. (O. 77 r. 4)
(1) Where persons are sued as partners in the name of their firm, appearance may not be entered in the name of the firm but only by the partners thereof in their own names, but the action shall nevertheless continue in the name of the firm.
(2) Where in an action against a firm the writ by which the action is begun is served on a person as a partner, that person, if he denies that he was a partner or liable as such at any material time, may enter an appearance in the action and state in the memorandum of appearance that he does so as a person served as a partner in the defendant firm but who denies that he was a partner at any material time.
An appearance entered in accordance with this paragraph shall, unless and until it is set aside, be treated as an appearance for the defendant firm.
(3) Where an appearance has been entered for a defendant in accordance with paragraph (2) then–
(a) the plaintiff may either apply to the Court to set it aside on the ground that the defendant was a partner or liable as such at a material time or may leave that question to be determined at a later stage of the proceedings;
(b) the defendant may either apply to the Court to set aside the service of the writ on him on the ground that he was not a partner or liable as such at a material time or may at the proper time serve a defence on the plaintiff denying in respect of the plaintiff’s claim either his liability as a partner or the liability of the defendant firm or both.
(4) The Court may at any stage of the proceedings in an action in which a defendant has entered an appearance in accordance with paragraph (2), on the application of the plaintiff or of that defendant order that any question as to the liability of that defendant or as to the liability of the defendant firm be tried in such manner and at such time as the Court directs.
(5) Where in an action against a firm the writ by which the action is begun is served on a person as a person having the control or management of the partnership business, that person may not enter an appearance in the action unless he is a member of the firm sued.
5. Enforcing judgment or order against firm. (O. 77 r. 5)
(1) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6, issue against any property of the firm within the jurisdiction.
(2) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6 and to the next following paragraph, issue against any person who–
(a) entered an appearance in the action as a partner; or
(b) having been served as a partner with the writ of summons, failed to enter an appearance in the action; or
(c) admitted in his pleading that he is a partner; or
(d) was adjudged to be a partner.
(3) Execution to enforce a judgment or order given or made against a firm may not issue against a member of the firm who was out of the jurisdiction when the writ of summons was issued unless he–
(a) entered an appearance in the action as a partner; or
(b) was served within the jurisdiction with the writ as a partner; or
(c) was, with the leave of the Court given under Order 11, served out of the jurisdiction with the notice of the writ, as a partner;
and, except as provided by paragraph (1) and by the foregoing provisions of this paragraph, a judgment or order given or made against a firm shall not render liable, release or otherwise affect a member of the firm who was out of the jurisdiction when the writ was issued.
(4) Where a party who has obtained a judgment or order against a firm claims that a person is liable to satisfy the judgment or order as being a member of the firm, and the foregoing provisions of this rule do not apply in relation to that person, that party may apply to the Court for leave to issue execution against that person, the application to be made by summons which must be served personally on that person.
(5) Where the person against whom an application under paragraph (4) is made does not dispute his liability, the Court hearing the application may, subject to paragraph (3), give leave to issue execution against that person and, where that person disputes his liability, the Court may order that the liability of that person be tried and determined in any manner in which any issue or question in an action may be tried and determined.
6. Enforcing judgment in action between partners, etc. (O. 77 r. 6)
(1) Execution to enforce a judgment or order given or made in–
(a) an action by or against a firm in the name of the firm, against or by a member of the firm; or
(b) an action by a firm in the name of the firm against a firm in the name of the firm where those firms have one or more members in common,
shall not issue except with the leave of the Court.
(2) The Court hearing an application under this rule may give such directions including directions as to the taking of accounts and the making of inquiries as may be just
7. Attachment of debts owed by firm. (O. 77 r. 7)
(1) An order may be made under Order 49, rule 1, in relation to debts due or accruing due from a firm carrying on business within the jurisdiction notwithstanding that one or more members of the firm is resident out of the jurisdiction.
(2) An order to show cause under the said rule 1 relating to such debts as aforesaid must be served on a member of the firm within the jurisdiction or on some other person having the control or management of the partnership business.
(3) Where an order made under the said rule 1 requires a firm to appear before the Court, an appearance by a member of the firm constitutes a sufficient compliance with the Order.
8. Actions begun by originating summons. (O. 77 r. 8)
Rules 2 to 7 shall, with the necessary modifications, apply in relation to an action by or against partners in the name of their firm begun by originating summons as they apply in relation to such an action begun by writ.
9. Application to person carrying on business in another name. (O. 77 r. 9)
An individual carrying on business within the jurisdiction in a name or style other than his own name may be sued in that name or style as if it were the name of a firm, and rules 2 to 8 shall, so far as applicable, apply as if he were a partner and the name in which he carries on business were the name of his firm.
10. Applications for orders charging partner’s interest in partnership property, etc. (O. 77 r. 10)
(1) Every application to the Court by a judgment creditor of a partner of an order under section 25 of the Partnership Act 1961 (Act 135) (which authorizes the High Court or a Judge thereof to make certain orders on the application of a judgment creditor of a partner including an order charging the partner’s interest in the partnership property), and every application to the Court by a partner of the judgment debtor made in consequence of the first mentioned application must be made by summons.
(2) The Registrar may exercise the powers conferred on a Judge by the said section 25.
(3) Every summons issued by a judgment creditor under this rule, and every order made on such a summons, must be served on the judgment debtor and on such of his partners as are within the jurisdiction.
(4) Every summons issued by a partner of a judgment debtor under this rule, and every order made on such a summons, must be served–
(a) on the judgment creditor; and
(b) on the judgment debtor; and
(c) on such of the other partners of the judgment debtor as do not join in the application and are within the jurisdiction.
(5) A summons or order served in accordance with this rule on some only of the partners of a partnership shall be deemed to have been served on all the partners of that partnership.
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