HAREKRISHNA MALLIK Vs. NARSINGH DAS

JUDGEMENT

(1.) THIS miscellaneous appeal arises out of an appeal in a money suit which had been instituted by four persons in whose favour a decree was ultimately passed by the Court of first instance. The defendants thereupon appealed and while the appeal was pending, one of the plaintiffs who was respondent No. 4 in the appeal died on August 17, 1930. As no step was taken within the time allowed by law for substituting the heir of the deceased respondent it was held by the Additional Subordinate Judge, in whose Court the appeal was pending, on January 17, 1931, that the appeal had abated as a whole Subsequently an application was filed by the appellants asking the Court to set aside the abatement and this application was rejected by the learned Subordinate Judge on March 2, 1931. The defendants have now perferred an appeal against the decision of the Subordinate Judge refusing to set aside the abatement and a Civil Revision against the decision dated January 17, 1931, by which he held that the whole appeal had abated. Now, it is clear that the Civil Revision does not lie "because the appeal having in effect been dismissed by the learned Subordinate Judge by reason of his decision that it had abated, a second appeal could have been perferred against his decision and it is clear that where it was possible for the defendants to appeal against the decision of the Subordinate Judge and they have not appealed, they cannot agitate the matter which they might have agitated in appeal by preferring an application in revision. As to the miscellaneous appeal, the learned Advocate for the appellants does not challenge the finding of the Subordinate Judge that if there has been an abatement no ground has been made out for setting aside such abatement. What he contends is that in fact there had been no abatement and he bases his contention upon the plaint in which it has been stated that the four plaintiffs "were carrying on business in the name of the firm Gurumukh Roy Bisseswar Lal." It is argued that the suit was virtually a suit by a number of partners in a firm and if one of the partners dies in the course of the litigation, the right to sue must be held to survive to the surviving partners. The learned Advocate has in support of his contention relied upon the decisions in Bal Kissen Das Daga V/s. Kanhya Lal 21 Ind. Cas. 509 : 17 C.L.J. 648 and Debt Das V/s. Nirpat 20 A 365 : A.W.N. 1898, 73 On the other hand reliance has been placed on behalf of the respondents on a decision by a Division Bench of the Calcutta High Court in Monmohan Panday v. Bidhu Bhusan Choudhury 48 Ind. Cas. 309 : 28 C.L.J. 268, 48 Ind. Cas. 309. The question which we are asked to decide is really as to whether Order XXX, Rule 4 ought to be construed in the wide manner as suggested in the decisions by the Allahabad High Court in Debi Das V/s. Nirpat 20 A 365 : A.W.N. 1898, 73 and by the Calcutta High Court in Bal Kissen Das. Daga V/s. Kanhaya Lal 21 Ind. Cas. 509 : 17 C.L.J. 648, or whether the construction placed upon it in the later case of the Calcutta High Court in Monmohan Panday V/s. Bidhu Bhusan Chowdhury 48 Ind. Cas. 309 : 28 C.L.J. 268 is the construction which should be adopted by us. In my opinion the question as to what should be the rule when several partners bring a suit and one of them dies in the course of the litigation does not arise, because upon reading para.1 of the plaint it seems to be clear that there was no partnership in exisence when the suit was brought. What appears from the plaint is that the four plaintiffs used to carry on business jointly at the time when the loan was taken by the defendants, but it is conceded by all the parties concerned that there has since been a separation among the plaintiffs who were members of the old firm and that the firm no longer exists. As the learned Subordinate Judge has pointed out, the suit was not brought in the name of the firm but was brought by the plaintiffs in their individual capacity. It appears to me that the rule which would govern a suit brought by partners would not govern the present case. It is contended by the learned Advocate for the appellants that under Section 263, of the Indian Contract Act such a rule would govern the present suit but I am not prepared to accept this contention. Order XXX, Rule 4 clearly provides that that rule would apply where two or more persons may sue or be sued in the name of a firm. Here the firm being no longer in existence, the suit could not have been brought in the name of a firm and in fact was not so brought. It appears to me therefore that the decision of the learned Subordinate Judge was correct and I would dismiss this appeal with costs. The Civil Revision is dismissed with costs other than the hearing fee. Macpherson, J. I agree that the appeal be dismissed.