The death of a partner in an unregistered partnership firm and non-substitution of his legal representatives or heirs does not result in abatement of the suit, provided that the suit was filed under Rule 1 of Order XXX of the Code of Civil Procedure.

1. Title (Mortgage) Suit No. 138 of 1986 was filed by the State Bank of India, plaintiff-opposite party, against Laxami Narayan Rice Mill, a partnership firm and its partners Sri Kailash Kumar Khowala and Sri Ram Avtar Khowala which is pending in the Court of Subordinate Judge-V, Deoghar.

2. During the pendency of the suit defendant No. 3 Sri Ram Avtar Khowala died on 18-9-1991. It is claimed on behalf of the petitioners that defendant No. 2, through the other partner of the firm, had duly intimated the fact of the death of defendant on 1-10-1991 to the plaintiff-bank, yet no steps were taken for substitution of the legal heirs of the deceased defendant No. 3 and again on 16-3-1992 information regarding the death of defendant No. 3 was sent to the plaintiff-bank yet again no steps were taken for substitution.

3. It appears that defendants 1 and 2 appeared in the court below on 16-2-1994 after substituted service by publication and filed a petition on 24-5-1994 under O. 22, R. 4 read with S. 151 of the Code of Civil Procedure stating that the suit as a whole has abated on account of non-substitution of the heirs of deceased defendant No. 3. It was stated in that petition that intimation regarding the death of defendant No. 3 had been given by the other partner to the plaintiff on 18-9-1991 and all the heirs of deceased defendant are not on record.

4. It was claimed that the firm was not registered and as such provisions of O. 30, R. 4 of the Code of Civil Procedure will not apply.

5. The trial Court by the impugned order dated 14-6-1994, after considering the submissions made by learned counsel for the parties and material on record, held that defendant No. 1 is a firm and defendant No. 2 Kailash Kumar Khowala and defendant No. 3 Ram Avtar Khowala were the two partners, out of whom defendant No. 3 Ram Avtar Khowala died. Submission made by learned counsel for the defendants before the trial Court that O. 30, R. 4 of the Code of Civil Procedure (hereinafter referred to as the Code) is not attracted to the facts of the case as defend ant No. 1 is not a registered firm was rejected and it was held by the trial Court that O. 30, R. 4 applies even if the firm is not registered and in view of the provision contained in O. 30, R. 4 of the Code death of a partner and non-substitution of his legal representatives or heirs would not result in abatement of the suit and consequently rejected the application.

6. Defendants 1 and 2 being aggrieved by the impugned order dated 14-6-1994 have filed this civil revision application.

7. Learned counsel for the petitioners in support of his submission that R. 4 of O. 30 of the Code is not attracted to the facts of the instant case as the firm is an unregistered firm and failure to bring on record the heirs and legal representatives of the deceased partner would result in abatement of the suit as a whole has relied upon a decision of the Allahabad High Court in M. S. Pearl Sound Engineering V/s. M/s. Pooran Chand, AIR 1975 All 207, in which it was held (at pp. 208209 of AIR) :-

"Rule 1 of Order XXX of the Code of Civil Procedure enables any two or more persons claiming or being liable as partners and carrying on business in India to sue or be sued in the name of the firm, if any, of which such persons were partners at the time of the accruing of the cause of action. It provides a new and convenient mode of describing in a suit two or more persons claiming or being liable as partners. The partners may adopt this method and bring the suit in their firm name. So also they may be sued in their firm name. A firm is a compendious collective name for the individual members who constitute the firm. When a suit is instituted by or against a firm it is in reality a suit by or against all the partners of the firm. The firm name stands for all those persons who were its partners at the time of the accruing of the cause of action. In other words, the effect of using the name of the firm is to bring all t