CANARA BANK Vs. HANUMAN HOSIERY

JUDGEMENT

(1.) HEARD learned counsel appearing for the parties and perused the order dated 25 -9 -1997 by which the court below held that the entire suit abated because of non -substitution of legal representatives of defendant no.2

(2.) THE plaintiff -petitioner filed T.M.S. No. 54/95 against the defendants -opposite party no.1, a partnership firm and defendants no. 2 and 3, who are mother and son being the partners of the firm for realisation of the outstanding loan taken in the name of the firm. During the pendency of the suit defendant no.3, who is the mother of defendant no.2, died. The plaintiff -petitioner failed to substitute the heirs and legal representatives of the deceased defendant no.3 as a result of which the defendants filed an application praying for dismissal of the suit as abated. The court below by the impugned order held that the entire suit has abated for non -substitution of the legal representatives of defendant no.3.

(3.) FROM perusal of the order itself, it appears that the court below, has not correctly appreciated the law nor the facts of the case. Admittedly, the loan was taken In the name of the firm and various documents were executed by the two partners for and on behalf of the firm Admittedly, the liability of the partners was joint and several. Although this fact has been appreciated by the court below that the liability of the defendants is joint and several even then it was illegally held that the entire suit has abated. The approach of the court below is not correct. Even if the legal representative of the deceased respondent no.2 is not brought on the record within the statutory time, the suit as against defendant no. 3 shall abate and not against the other defendants.