MANOHAR LAL Vs. DIWAN SINGH

JUDGEMENT

(1.) TWO plaintiffs instituted this suit to recover principal and interest on a balance of account due to the plaintiffs firm. It was pleaded in defence that there were two other persons who were also partners in the plaintiffs firm and who had not joined in the suit and that the suit should, therefore, be dismissed. This plea was upheld by the Court of first instance, which dismissed the suit. On appeal by the plaintiffs, the lower Appellate Court held that the defect in the suit, if any, was cured by the provisions of Order XXX, Rule 1, of the Code of Civil Procedure. That Court then proceeded to give the plaintiffs a decree for the sum of Rs. 648 odd. It appears that while the appeal was pending in the Court below and before the decision of the appeal the two plaintiffs, Diwan Singh and Janki Saran, had been adjudged insolvents. In appeal to this Court, it is contended that the Court below was wrong in holding that the suit was maintainable by the two plaintiffs without the partners being joined in the suit. Whether the view of the Court below on this point was correct or not, it appears to us that the second plea taken before us must be sustained, that is, as the plaintiffs had been declared insolvents while the appeal was pending in the Court below, the only person who could continue the appeal in that Court was the Receiver appointed under the Insolvency Act to manage the affairs of the insolvents. We must, therefore, allow this appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs here and in the Court below including in this Court fees on the higher scale.