The death of one partner does not automatically dissolve a partnership firm or abate civil proceedings initiated by the firm. The legal representatives of the deceased partner can be impleaded in substitution of the deceased, and the proceedings can continue in accordance with the law.

ORDER

1. Leave granted.

2. M/s Kamal Engineering Works was a partnership firm comprising two partners - Shiv Singh Galundia and his son - Sumer Singh Galundia. The firm filed Civil Suit No.73/1996 for specific performance of contract, damages, declaration and for permanent injunction. The Additional District and Sessions Judge No. - 2, Jaipur District, Jaipur dismissed the aforesaid Suit on 07.11.2003.

3. The aggrieved partnership firm filed a First Appeal before the High Court. During the pendency of that appeal, one of the partners, namely, Shiv Singh Galundia died. His legal heirs, which included his wife, two sons and a daughter moved an application under Order XXII, Rule 3 CPC in the pending appeal for their substitution as legal representatives of the deceased partner.

4. The High Court vide the impugned order dated 20.07.2019 has taken the view that with the demise of Shiv Singh Galundia - one of the two partners, the partnership firm stands dissolved automatically and, thereafter, right to sue does not survive to the other partner for seeking the relief(s) as were prayed for by the partnership firm in the Suit. Consequently, the first appeal itself has been dismissed as abated. The appellants are the two sons of late Shiv Singh Galundia, who being aggrieved by the impugned order, are before us by way of present appeal.

5. Heard learned counsel for the parties and carefully perused the material placed on record.

6. It appears to us that the High Court has completely overlooked Order XXX Rule 4 of the Code of Civil Procedure which reads as follows:

"4. Right of suit on death of partner. -(1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872 (9 of 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.

(2) Nothing in sub-rule (1) shall limit or otherwise affect any right which the legal representative of the deceased may have-

(a) to apply to be made a party to the suit, or

(b) to enforce any claim against the survivor or survivors."

7. Similarly, Order XXII, Rule 10 CPC too has some bearing on the issue as it provides as under:

"10. Procedure in case of assignment before final order in suit. - (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule(1)."

8. There is no gainsaid that where two persons have sued in the name of a partnership firm and if one of such persons dies during the pendency of the proceedings, it is not necessary to join the legal representatives of the deceased as a party to such proceedings, which shall continue in accordance with law. In other words, the death of one of the partners does not foreclose the continuation of the civil proceedings initiated by the firm. In this view of the matter, the death of Shiv Singh Galundia could not be a valid reason to declare the First Appeal to have abated.

9. Further, the legal representatives of the deceased - Shiv Singh Galundia had already applied for their impleadment in substitution of the deceased and there was no reason for the High Court to decline such a prayer when the application was moved in time without any other legal impediment in accepting their prayer.

10. It also appears to us that the High Court has completely misconstrued the view taken by this Court in AVK Traders vs. Kerala State Civil Supplies Corporation Limited, (2013) 15 SCC 217. This Court in para 12 of the said decision has held as under:

"12. We are in this case faced with a situation