KIRTIKUMAR DHANJIBHAI PATEL Vs. MULJIBHAI PARBATBHAI PATEL
HIGH COURT OF GUJARAT
(Shri) Kirtikumar D. Patel
(Shri) Muljibhai P. Patel And Others
Click here to view full judgement.
(1.) . In a case where the plaintiff files a suit for dissolution of the firm and for taking of accounts against the partnership firm as well as other partners of the firm and during the pendency of such a suit if one of the partners-defendants dies will it not be necessary for the plaintiff to joint the legal representatives of the deceased-defendant partner? This short is the arisen question which has in this revision application .
(2.) . This revision application is filed against an order passed by the trial court below Exhibit 62 in Special Civil Suit No. 27 of 1981 of the Court of Civil Judge (Senior Division) Gondal. By this application the plaintiff prayed that the heirs and legal representatives of defendant No. 4 who died during the pendency of the suit be joined as party defendants. The trial court rejected the application on the ground that the suit was also against the firm and defendant No. 4 was partner of the firm and in the opinion of the trial court it was not necessary to bring the legal representatives of the deceased defendant No. 4 on record. Further the trial court was of the opinion that the provision of Order 30 Rule 4 of the Code of Civil Procedure supersedes the general provisions of Order 22 of the Code of Civil Procedure.
(3.) . It has not been shown to me by the counsel for either side as to how the provision of Order 30 Rule 4 of CPC supersedes the provisions of Order 22 of CPC. The trial court has committed an error in rejecting the application inasmuch as the provision of Order 30 Rule 4 of CPC is only an enabling provision. In case where the plaintiff files a suit against the firm and its partners and during the pendency of the suit if one of the partners dies it will not be absolutely necessary for the plaintiff to join the legal representatives of the deceased partner in the suit. In such a case the plaintiff would not be in a position to execute the decree which may ultimately be passed in his favour against the personal estate of the deceased partner. Thus if the suit is against the firm and one of the partners dies during the pendency of the suit and even if the legal representatives of the deceased are not joined the decree can be enforced against the share of the deceased in the partnership property only but such a decree wherein legal representatives are not joined cannot be enforced against the personal estate of the deceased partner. This is a well-settled position and if necessary reference may be made to the decision in the case of MATHURADAS CANJI V. EBRAHIM REPORTED IN A.I.R. 1977 BOMBAY 581. Now in the instant case the suit is by other partners of the firm for dissolution and for taking of accounts. In this suit one of the partners who was joined as defendant has died. If the legal representative of the deceased partner are not joined it may create complications for the plaintiff at the time of taking of accounts and also in case the plaint wishes to enforce the decree even against the personal estate of the deceased partner. In this view of the matter the trial court ought to have grant- ed the application. and ought to have allowed the plaintiff to join the legal representatives of the deceased partner as party defendants in the suit.;
Copyright © Regent Computronics Pvt.Ltd.