- (1.) This appeal by special leave arises from the judgment of the division bench of the Patna High court made on 2/5/1980 in appeal from Original Decree No. 306 of 1969.
(2.) The respondents filed a suit to recover a sum of Rs. 58,880. 00 on the foot of a promissory note dated 1/4/1960 to recover the principal sum of Rs. 46,380. 00 and interest which accrued thereon. The trial court dismissed the suit. But on appeal, the High court allowed the appeal and decreed the suit. Thus, this appeal by special leave.
(3.) Two points were raised in the written statement and argued by the respondents. The first point that was addressed and pressed for consideration is that the respondent-plaintiff being a partnership firm, has not impleaded all the partners co-nominees as plaintiff-party to the suit. Resultantly, the suit is not maintainable. Pending suit, one of the partners died and the legal representatives were not brought on record. The question, therefore, was whether the suit is liable to be dismissed for non-joinder of the necessary and proper parties The trial court as well as the High court recorded as a fact that the respondent-firm is a registered partnership firm and, therefore, under Section 69 of the Partnership Act the suit is maintainable. The trial court dismissed the suit on the ground that since one of the partners died pending suit and the legal representatives were not brought on record, suit was bad for non-joinder of necessary and proper parties. The controversy is covered by the provisions of Order XXX of the Civil Procedure Code which gives special procedure for filing the suit by or against a partnership firm carrying on business in the name other than its own. In this case. the relevant provision is Rule 4 of Order XXX which provides thus: "4.(1 Notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872 (9 of 1872, where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit. (2 Nothing in sub-rule (1 shall limit or otherwise affect any right which the legal representative of the deceased may have (A) to apply to be made a party to the suit, or (B) to enforce any claim against the survivor or survivors. ";