1. The plaintiffs brought the suit out of which this appeal has arisen for recovery of money alleged to be due upon a hundi, dated the 26th of December 1917, executed in their favour on behalf of the firm of Ajudhya Prasad-Sheikh Kallu. The hundi was signed by the first defendant Sohan Lal and by the second defendant Husain Bakhsh. The plaintiffs alleged that Husain Bakhsh had paid Rs. 800 out of Rs. 1,600, the amount of the hundi. They accordingly claimed the balance of Rs. 800, and interest against both the defendants. Sohan Lal's contention was that he was not a partner in the firm of Ajudhya Prasad-Sheikh Kallu and that he had signed the hundi in his capacity as munim of that firm and that consequently he was not personally liable for the amount of the hundi.
2. The Court of first instance overruled this objection and made a decree against Sohan Lal. Sohan Lal appealed to the lower Appellate Court and that Court, for reasons slated in its judgment, came to the conclusion that Sohan Lal was not a partner in the firm of Ajudhya Prasad-Sheikh Kallu and that he was only a servant of the firm and was ro(sic) iving a salary from it. This is a finding of fact with which we cannot interfere in this second appeal. It may be a right finding or a wrong finding, but the fact remains that the lower Appellate Court found that Sohan Lal was only munim of the firm. That Court accordingly dismissed the suit against Sohan Lal and. allowed his appeal. The plaintiffs have preferred this appeal and the first contention on their behalf is that as Sohan Lal had signed the hundi a decree ought to have been made against him. Section 28 of the Negotiable Instruments Act has been relied on. We think that, in view of the finding of the lower Appellate Court, namely, that Sohan Lal signed the hundi as munim and that noney was lent not to him in his personal capacity but to the firm, that is, the persons who owned the firm, Section 28 can have no application to a case of this kind. Sohan Lal has, therefore, upon the finding of the lower Appellate Court, been rightly exempted from the claim, It is next urged that the Court ought to have made a decree against Husain Bakhsh and reference is made to Order XLI, Rule 33 of the Code of Civil Procedure. It is true that had Husain Bakhsh been a party to the appeal in the Court below, the Court might have made a decree in the plaintiffs' favour against Husain Bakhsh in pursuance of the provisions of Rule 33, but, unfortunately for the plaintiffs, Husain Bakhsh was not made a party to the appeal. The Court did not exercise its powers under Rule 20 of Order XLI and add him as a party, nor did the plaintiffs move the Court to make Husain Bakhsh a party. As Husain Bakhsh was not a party to the appeal in the Court below no decree could be made against him under Order XII Rule 33. Therefore, the plaintiffs have now lost all their remedy in the present suit as against both the defendants, and this appeal must fail. We dismiss it with costs including in this Court fees on the higher scale.