1. The plaintiff brought a suit for accounts and dissolution against a registered firm, defendant No. 1, and its partners, defendants Nos. 2, 3, 4 and 5 ; and he obtained a preliminary decree for dissolution. He went in appeal against certain orders passed in the preliminary decree ; but during the pendency of the appeal one of the respondents died and his heirs were not brought on the record within the statutory period. The plaintiff applied to the appellate Court for an order setting aside the abatement of the appeal, and an order excusing the delay in making the application to set aside the abatement. In its judgment (in which it was held incidentally that the order' setting aside the abatement could not be granted and the delay could not be excused) the Court decided that the appeal abated as a whole and not only as against the deceased respondent. It does not seem to have been argued by any one before the lower appellate Court that the appeal did not abate at all; but in this second appeal that is the principal point which has been taken, namely that the appeal did not abate at all.
2. The argument depends for its validity upon the application of Order XXX, Rule 4, which says that where two or more persons may sue or be sued] in the name of a firm and any of such persons dies, it shall not be necessary to join the legal representative of the deceased as a party to the suit. Whether Order XXX, Rule 4, is or is not applicable to the present case depends upon two points : (1) that the suit was a suit against a partnership within the meaning of Order XXX, Rule 1, and (2) that Order XXX, Rule 4, applies in principle to appeals though in terms it applies only to suits. On the first point I have no doubt at all that this is a suit against the partnership. There are on the record of the case two contracts with the plaintiff on one side and the registered firm named in this suit as defendant No. 1 on the other side; and clearly there was a firm capable of being sued. But; the plaintiff has gone out of his way to add as party defendants the names of the partners of the firm, and it is argued on behalf of the -defendants that that takes the case out of the purview of Order XXX altogether. If the suit was really a suit against the firm, then it was not necessary to make the partners parties to the suit in addition to the firm, and the plaintiff having done so must be deemed to have done so because they were necessary parties. On the other hand if they were necessary parties to the suit, then the firm, was not a necessary party. It seems to me that the plaintiff's action in making these people parties to the suit after having already made the firm the principal defendant is neither here nor there. If his action in making them parties was unnecessary, the effect surely would be nothing at all. It could not have the effect of making the suit cease to be a suit against the partnership. There is an admission of the plaintiff's learned pleader that there was a jural relationship of partnership between the plaintiff and the other defendants and not between the plaintiff and the firm of the defendants. I do not know on what material that admission is made, but it does not seem to be in accordance with the facts in so far as it implies that the relationship of partnership was not between the plaintiff and the firm of the defendants. But whatever it means, and even if it means that the plaintiff was one of the partners of the firm which he is now suing (a meaning which I do not think it really carries), the fact remains that defendant No. 1 is the registered firm of which the rest of the defendants are members, and I cannot see any justification whatever for holding that this is not a suit against the firm. The admission of the plaintiff's pleader that defendants Nos. 2 to 5 were impleaded because of their jural relationship with the plaintiff does not mean that this is not a suit against the firm. If it did mean that it was not a suit against the firm, the plaintiff would not be bound by the admission, it being an admission on a point of law.
3. The other point which the plaintiff has to establish is a little more difficult. No part of Order XXX applies in terms to appeals. But there does not seem to be any logic-in requiring a legal representative to be joined in an appeal against a firm when it would not be necessary to join the legal representative in the suit itself. There is no authority for the suggestion that Order XXX applies only to suits and cannot apply to appeals. It is argued that obviously the Order could not be applied to any appeal against a decision in a suit which was not a suit against a firm, and therefore the Order cannot be applied to appeals. But there seems to be an obvious fallacy in that argument. Moreover if Order XXX does not apply to appeals, there does not seem to-be any scope for an appeal by a firm against a decree passed against them in a suit brought against them as a firm; even Section 96 does not say that an appeal may be brought in every case by a party to the suit in the name in which he is described in the suit. There is also Section 107, which states that an appellate Court subject to certain conditions shall perform as nearly as may be the same duties as are imposed on Courts of original jurisdiction. The Court of Original Jurisdiction in hearing a partnership suit under Order XXX is bound to recognise Order XXX, Rule 4, and I take it that by reason of Section 107 the appellate Court would be similarly bound by Order XXX, Rule 4, ' as nearly as may be. ' I have no doubt that Order XXX, Rule 4, has the effect of making it unnecessary to bring the legal representatives of defendant No. 4 on the record of the suit in this case, since the suit can be treated as a suit against the firm.
4. It was also argued on behalf of the plaintiff that on the authority of this Court in Dawarali Jafarali v. Bai Jadi(1940) 42 Bom. L.R. 663 the appeal would not abate in view of the fact that there has already been a preliminary decree. In that case it was held that in a suit where a preliminary decree has already been passed there can be no abatement by reason of the death of one of the parties after the preliminary decree. But the reasoning on which this decision is based was that the wording of Order XXII, Rule 4, and its reference to ' a right to sue' would be inappropriate to a suit in which the rights of the parties had already been crystallized in a preliminary decree. The principle underlying Order XXII, Rule 4 applies to appeals (see Order XXII, Rule 11). But the reasoning underlying the case cited would not apply to appeals if the words ' right to appeal' in Rule 4 are substituted for the words ' right to sue' in Rule 4. It could not be said that the right to appeal had already been crystallized in the preliminary decree against which the appeal was brought. But though the plaintiff fails on this aspect of this appeal, he must succeed on the other. The result is that the appeal must be allowed and the lower appellate Court must be directed to hear the appeal on the merits.
5. As this is a new point which was not taken before the lower appellate Court, and as it is possible that an appeal to this Court would not have been necessary if it had been taken before the lower appellate Court, the costs, of the hearing in this Court will be paid by the plaintiff.