JUDGMENT - A.D. MANE, J.:---A short but important question is involved in this First Appeal, as to whether the suit filed by the appellant-firm was within limitation on basis of open, mutual and current account of the respondent-firm after it's dissolution.

2.In order to appreciate this question we may refer to the facts of the case. For the sake of convenience, the appellant is referred as 'plaintiff', respondent No. 1- firm and respondents 2 to 5, who were it's partners as 'defendants'.

3.The plaintiff filed suit on 29-4-1983 to recover certain amount due on the foot of the account for the period from accounting year 1977-78 to 1981-82. The plaintiff alleged that it maintains accounts of different firms in it's account books. Advances made by the plaintiff to the defendants and repayments thereof, are debited and credited respectively in the accounts of the defendants in books of accounts maintained by the plaintiff. The balance, at the end of each accounting year was forwarded in the next year. According to the plaintiff, the account books of the defendants are open and running account and the amount received by the plaintiff from defendants was credited towards the general balance due at the end of the account and not towards any particular advance made to the defendants. The last advance made by the plaintiff to the defendants was on 15-1-1980 and the last payment received by the plaintiff from the defendant No. 5 towards the general balance due from the defendants was on 8-9-1981.

4.The plaintiff's further case is that the plaintiff demanded the amount of advance by it's Advocate's letter dated 10-2-1981 but the defendants failed to satisfy the said demand.

5.In response to the suit summonses issued, the defendants 1, 3 and 4 appeared and filed application Exhibit 5 raising a contention that the plaint was liable to be rejected under Order VII, Rule 11 of the Civil Procedure Code. In this context, it was contended that the defendant No. 1 firm was dissolved with effect from 9-12-1979. Defendant No. 5 Lalchand Manakchand Mehta is the common partner of the plaintiff. as well as of the defendant No. 1-firm. Plaint is signed by Vijay Lalchand Mehta, who is son of the defendant No. 5-Lalchand. Other sons of defendant No. 5 are the partners of the plaintiff firm. Defendant No. 5 and his sons form a joint Hindu family and defendant No. 5 is the Manager and Karta of the joint family. Notice of dissolution of partnership firm was given by Lalchand by publishing it in the news paper. Taking into account this aspect, it was contended by the plaintiff firm that dissolution of the defendant No. 1 firm took place on 9-12-1979 and as such last payment made by one of the partners viz. defendant No. 5 of the firm will not bind the firm and will not save limitation. Therefore, the plaint was liable to be rejected under Order VII, Rule 11 of the Civil Procedure Code.

6.The learned trial Judge considered the objection and held that the plaintiff's claim was not within limitation. The plaint was, therefore, rejected under Order VII, Rule 11 of Civil Procedure Code.

7.We heard Shri Godsey, learned Counsel for the appellant and Shri Patni, learned Counsel for the respondents.

8.Shri Godsey, learned Counsel urged that the learned trial Judge mis-construed the provisions of Order VII, Rule 11 of the Civil Procedure Code and grossly erred in following the said provisions. It is submitted that the learned trial Judge virtually decided the question of limitation on merits without framing any issue to that effect and without giving the appellant an opportunity to present case and to rely upon document and oral evidence. Therefore, the impugned order is un-just and illegal.

9.In the first place, it may be stated that Order VII, Rule 11 of the Civil Procedure Code enables the defendants to raise a preliminary objection against maintainability of the suit on account of formal defect in the plaint, consequent upon, the Court is under obligation to decide

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