The central legal point established is that a suit should not be barred by sec. 69 of the Indian Partnership Act if it was properly instituted after the firm was registered.

JUDGMENT

D.N. Mitter, J. - This Rule was obtained for the revision of an appellate judgment dismissing the Plaintiffs' suit on the ground that the suit was barred by reason of the provisions of sec. 69 (2) of the Indian Partnership Act (1932). It appears that the Plaintiffs instituted a suit for recovery of a sum of Rs. 370. It appears from the plaint that Mahesh Chandra Saha, Jogesh Chandra Saha, Suresh Chandra Saha and Jugal Dasi Saha who are joint partners of a firm, instituted the suit on the 25th May, 1934. In June, 1934, a written statement was filed on behalf of one of the Defendants, namely, Defendant No. 2, in which he did not take this plea in bar based on sec. 69, with the result that the suit proceeded in trial. It was decreed on contest against Defendant No. 2 and ex parte against the other Defendants. An appeal was taken by Defendant No. 2 against the decree passed against him, but that appeal was allowed to go by default as in the meantime the other Defendants made an application for setting aside the ex parte decree against them. The ex parte decree against them was set aside. But notwithstanding that, the decree against Defendant No. 2 was allowed to stand by some procedure. Defendant No. 2) was allowed to come in as one of the opposing Defendants in the suit which has been restored in so far as other Defendants are concerned. After evidence had been taken, an objection for the first time was taken at the time of argument that the suit is barred by the provisions of sec. 69. In the meantime, it appears that the firm had been registered as a firm and the persons suing have been shown in the register of firms as partners in the firm, so that if the suit had been instituted after the date of such registration there would be no difficulty in the Courts' entertaining the suit. The lower Appellate Court as well as the Court of first instance, however, took the view that the suit is barred by sec. 69.

2. It is against the order of the lower Appellate Court which affirmed the decree of the first Court dismissing the suit that the present petition for revision has been brought, and it has been contended that the Courts below are clearly in error in dismissing the suit on that ground. The question turns on the proper construction which is to be put upon sec. 69 of the Partnership Act. Cl. (2) of that section which is material for the present purpose runs as follows:

No suit to enforce a right arising from a contract shall be instituted in any Court by or behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of firms as partners in the firm.

3. The effect of this clause is that no Court shall entertain any suit before the registration of the firm. In the present case, according to the finding of the lower Appellate Court, the Petitioners' firm was registered on the 20th June, 1934, that is after the date of the institution of the suit. As the plea in bar of suit was not taken till in the course of the argument at the second hearing of the suit, that is, after the hearing which commenced after the order had been made under Or. 9, r. 13 of the Code, the suit should not be thrown out. In the circumstances there seems to be no reason why I should not hold that the suit was properly instituted at any rate on the 20th June, 1934, when the firm was registered. The plaint in this suit was allowed to remain on the file and it did remain on the file till the date of registration. In such circumstances the suit may be treated as though the plaint had been received and the suit instituted on the day following the day of registration. I am told by Mr. Bhagirath Chandra Das who appears for the Petitioners that if the suit be held to have been filed either on the 20th or 21st June, the claim would not be barred by the statute of limitation. Of course that is a question which should be ultimately decided in the Court of first instance. There can be no doubt that t