- (1.) THIS is defendant's appeal in a suit for the recovery of money which was decreed in favour of the plaintiffs.
(2.) A preliminary objection has been taken on behalf of the respondent that the appeal has become incompetent as the legal representatives of Nenmal deceased plaintiff were not impleaded. In the plaint the plaintiffs were described as follows: - 1. Partners of the Firm Nenmal Kishanraj: (a) Nenmal. (b) Pukhraj. 2. Shanker son of Jagroop. In para 1 of the plaint it was mentioned that plaintiffs Nos. 1 (a) and (b) carry on business at Jalore in the name of Nenmal Kishanraj. It was mentioned in para 2 that the firm of the plaintiffs Nenmal Kishanraj placed an order with the firm of the defendants to purchase goods worth Rs. 6210/9/3 through their commission agency and that Shankerlal plaintiff No. 2 was also a sharer in the goods to the extent of annas-/6/- on account of which he had been impleaded in the suit. The suit was decreed by the trial court. The present appeal was filed in this Court on 24. 3. 54. Nenmal, Pukhraj and Shankerlal were joined as respondents. Nenmal and Pukhraj were described as partners of the firm Nenmal Kishanraj of Jalor. During the pendency of the appeal Nenmal died on 6. 10. 57 leaving a widow, a son and two daughters. A belated application was moved on 12. 8. 58 for impleading the legal representatives of Nenmal which was rejected by the order of this Court dated 15. 9. 58. The result was that the appeal abated against Nenmal. Relying on Manmohan vs. Bindhu Bhusan (1) and some other cases it is argued on behalf of the respondents that the appeal cannot proceed in the absence of the legal representatives of Nenmal because the latter can apply for execution of the entire decree against the defendants as the decree in their favour has become final. Firstly it was contended on behalf of the appellant that the suit was in substance one brought by the firm. This contention does not appear to be correct as the suit was brought by Nenmal, Pukhraj and Shankerlal in their individual capacities, as the heading and the allegations made in paras 1 and 2 of the plaint go to show. That Nenmal and Pukhraj were the partners of the firm Nenmal Kishanraj can only be regarded as-descriptive. Next it was contended that the appeal can proceed in the absence of the legal representatives of Nenmal in view of the provision of Rule 4 of Order 30, which runs as follows : - "r. 4 (1) Notwithstanding anything contained in sec. 45 of the Indian Contract Act, 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 representatives of the deceased as a party to the suit. " Reliance is placed on Balkishandas vs. Kanhaiyalal (2), Maung Shwa Htain vs. Ma Lon Ma Gale (3 ). It was held in both these cases that there was nothing in the wordings of Rule 4 which would go to show that it is only applicable in cases where the suit is brought in the name of the firm under O. 34, r. l. There can be no doubt that on the wordings of Rule 4 as it stands the view taken in these two cases is sustainable. But if this view is adopted it leads to this difficulty that the decree in favour of the deceased partner becomes final and can be executed by his legal representatives against the opposite party making the entire appeal infructuous. It was on account of this difficulty that it was held in Manmohan vs. Bindhu Bhusan (1) that Rule 4 of Order 30 is only applicable to such suits as are brought in the name of the firm. In such cases the decree is in favour of the firm and in the names of individual partners and it cannot be executed by the legal representatives of a deceased partner. No other High Court in India has taken the view adopted in the earlier Calcutta case, which has been overruled by the subsequent division bench authority of the same High Court referred to above and with all respect I agree with the subsequent decision. Another contention which was put forward on behalf of the appellant was that according to the allegations made in the plaint, in the transaction in suit besides Nenmal and Pukhraj Shankerlal was also a partner and as this new partnership between Pukhraj Nenmal and Shankerlal had no firm name the suit brought in their names should be considered to be a suit on behalf of this new partnership in the firm name. According to the allegations made in the plaint there was no privity of contract between Shankerlal and the defendants. So far as the defendants were concerned the order for the purchase of goods was placed by the firm Nenmal Kishanraj of which Nenmal and Pukhraj were the partners. It cannot therefore be said that the present suit purported to be on behalf of the new partnership consisting of Nenmal, Pukhraj and Shankerlal. I accordingly hold that the present appeal has become incompetent and dismiss it. In the circumstances of the case I direct that parties shall bear their own costs of this appeal. . ;