B.L. Yadav, J. - (1.) THE defendants have preferred the present revision against the order dated 11 -3 -1991 allowing the application of the Plaintiff opposite party for making an amendment against the name of defendant No. 2 as deceased as the other defendants, namely defendant Nos. 3 to 6 are already on record as persons against whom the suit has been filed. The plaint was accordingly directed to be amended making an endorsement of the name of Kanti Swaroop Sharma as deceased
(2.) LEARNED Counsel for the applicants urged that as the suit was filed by the Bank of India against M/s Shankar Traders, a registered partnership firm and also against Kanti Swaroop Sharma and defendant No 6, the relief was claimed for a decree of Rs. 1,48,966.11 with pendente and future interest at the rate of 19.5% per annum and also for preparing a temporary decree that the defendants, particularly defendant No. 2 was, personally liable, consequently his heirs were necessary parties after his death, the court below erred in rejecting the objection of the defendants. Reliance was placed on Ram Narain Kishun Dayal v. Ram Prasad : AIR 1931 All. 65; Mathuradas Canji Matani v. Ebrahim Fazalbhoy : AIR 1927, Bom. 581. Having heard the learned, counsel for the applicant I am of the view that the present revision is devoid of merits. After the death of Respondent No. 2 an application was made by the Plaintiff, the Bank of India to the effect that against the name of Respondent No. 2 an endorsement 'since deceased' may be made and his legal heirs are not the necessary parties On that an objection was filed by the applicant that Kanti Swaroop Sharma was liable in his personal capacity and also apart from his capacity as partner in the aforesaid firm, consequently his legal representatives were also necessary parties. Annexure -1 to the stay application indicates that an endorsement has been made by the Plaintiff to the following effect: "ail partners of M/s. Shankar Traders, 38/102, Meston Road, Kanpur", which indicates that defendant Nos. 2 to 6 were arrayed as partners of M/s. Shankar Traders, a registered firm. Consequently it was obvious that defendant Nos. 2 to 6 were arrayed in the capacity of partners of the registered firm, the Plaintiff No. 1, and not in their personal capacity. The decree that was sought was also for the recovery of the aforesaid amount and a preliminary decree for the sate of the mortgaged property. The aforesaid house which was mortgaged belonged to Kanti Swaroop Sharma and the deceased have become later on the proprietor of the registered firm. Consequently there was no mistake or error in directing the endorsement to be made against defendant No. 2 since deceased and his legal heirs and representatives have correctly not been brought on record. In such a situation I am of the view that Order 30 Rule 4 of the Code of Civil Procedure is relevant. Rule 4 provides that notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872, where two or more persons may sue or be sued in the name of a form 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 (sic).
(3.) A bare reading of the aforesaid provision makes it manifest that after the death of the partners the legal representatives were not the necessary parties to the suit. In view of the provisions of Order 30 Rule 4 the impugned order has been passed.;