Chatterjea, J.:— We think that the preliminary objection taken to the hearing of the appeal must prevail. The appeal arises-out of a suit to recover money on a hatchitta executed by two persons, named Upendra Nath Banerjee and an other, as managing partners of the “Calcutta Hosiery” in favour of Ray Chowdhury and brothers. The suit was instituted, however, by Bidhu Bhusan and several other persons as plaintiffs. In the plaint the description of the plaintiffs was—The proprietors and maliks of the firm styled: Ray Chowdhury brothers,” and then the names of the plaintiffs were mentioned. The Court below gave a decree to the plaintiffs and in the decree the names of Bidhu Bhusan and other persons were described as the plaintiffs without the addition of the words that they were maliks of the firm of Ray Chowdhury Brothers. After the appeal had been filed in this Court, one of the plaintiffs, Dakhina Banjan, died and his legal representatives were not substituted within the time allowed by law. It appears that an application was made out of time and that a Rule was issued to show cause why the substitution should not be made though out of time. The Rule, however, was discharged, the result being that the appeal was dismissed as against one of the plaintiffs, the deceased Dakhina Ranjan.
2. Now, the decree being in favour of six plaintiffs jointly, the appeal, cannot proceed in the absence of the legal representatives of one of them. The learned pleader for the defendants-appellants refers to O. 30, R. 4, which lays down that notwithstanding anything contained in Section 45 of the 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 representative of the deceased as a party to the suit.
3. It is contended that the suit was really instituted in the name of the firm of Ray Chowdhury Brothers. We are unable, however, to take that view. The suit was brought in the names of the particular individuals who were described as plaintiffs, and not in the name of the firm, and this is made clear by the decree that was passed in the case. In the case of Ram Narain Nursing Dass v. Ram Chunder Jankee Loll (1), in a suit by surviving partners for the recovery of a partnership debt which became due during the life of a deceased partner, the representatives of such deceased partner, having regard to Section 45 of the Contract Act (9 of 1872), were held to be necessary parties.
4. The title of the suit was—Issur Dass and Jugarnath, surviving partners of Nursing Dass deceased who carry on business in 99, Cross Street, Calcutta in the name and style of Earn Narain Nursing Dass…That appears to be a stronger case thin the present. O. 30, R. 4, does not help the appellants, as that rule applies only to a case where the suit is brought in the name of the firm. But even if we are to hold that the appeal can proceed in the absence of the representatives of the deceased plaintiff, we do not think that there would be any benefit to the appellants because the representatives of the deceased plaintiffs can apply for execution of the entire decree against the defendants as the decree in their favour cannot be touched by us. Under the circumstances, we think that the appeal must fail and is accordingly dismissed with costs, two gold mohurs, to Dr. Basak's clients. The Deputy Registrar's costs have already been deposited.
Greaves, J.:— I agree.
V.B/R.K
5. Appeal dismissed.