Lallubhai Shah, Kt., Ag. C.J.
1. This appeal arises out of a suit filed on behalf of the shop by the name of Krishappa Anna Goregaon kar of Nipani against Krishna Annappa Goregaonkar, Vahiwatdar and Proprietor of the shop Anna Satappa Shet Goregaon-kar of Poona, for an account of certain dealings which the firm at Nipani had with the shop at Poona. The lower Court has appointed a Commissioner to take accounts, and has further directed that whatever amount is found due may be taken into account in the other suit between the parties. An objection was taken on behalf of the defendant in the trial Court that the suit could not lie. But that objection was not allowed.
2. The defendant has appealed from the preliminary decree passed by the trial Court, and has urged the same objection before as. It is an admitted fact in the case that the plaintiff-firm consists of three partners, one of whom is Krishnappa Anna Goregaonkar. It is also an admitted fact that the defendant, Kriehnappa Anna Goregaonkar, is the sole proprietor of the shop Anna Satappa Shet Goregaonkar of Poona. It is clear that such a suit is not maintainable. Having regard to the ruling in Rustomji v. Sheth Purshotamdas I.L.R. (1901) 25 Bom. 606: 3 Bom. L.R. 227, it seems to us that the suit is bad, and on that ground this suit ought to have been dismissed by the lower Court. It does not really matter to the parties one way or the other, because all that could be determined in this suit will have to be determined in the other suit between the partners wherein accounts of the partnership are to be taken.
3. We reverse the decree of the lower Court and dismiss the suit. The defendant should get his costs from the plaintiffs, that is, Sakharam and Bala as representing the plaintiff's firm in both the Courts. The cross-objections are dismissed with costs.
4. The remaining portion of the judgment is not material to this report.