MODI, J.—This is a regular second appeal by the defendant Narsingh Das in a suit for rendition of accounts.

2. The material facts may be shortly stated as follows. The suit out of which the present appeal arises was brought by the plaintiff Bhairon Dan on the allegations that there was a firm in the name of Bhairon Dan Madangopal which did business in cloth at Calcutta and that the defendant No. 1 Narsinghdas and the plaintiff and defendants Nos. 4 and 5 were its partners. Defendants Nos. 2 and 3 were the sons of Narsinghdas and were members of a joint Hindu trading family consisting of themselves and their father Narsinghdas. It was further alleged that the plaintiff had 4-1/2 annas shares in this partnership business, defendants Nos. 4 and 5 held 3-1/2 annas share therein each and defendant No. 1 Narsingh Das held 4 annas share, and the remaining half anna share was to go to charity. This partnership, according to the plaintiff, was a partnership at will and had commenced its business on Smt. 1991 Asoj Sudi 1, and it was dissolved on Chait Sudi 9, Smt. 2005 when the parties made up their accounts obviously provisionally and decided that no further business would be done and that whatever realisations would be made thereafter these would be divided among the creditors and the balance would be divided between the partners. It was further alleged that the shop was dis-established on Magh Sudi 10, Smt. 2005 and that at that time a sum of Rs. 9801/9/6 remained due from defendants Nos. 1 to 3 and Rs. 1916/3/- from defendant No. 4 and Rs. 5151/9/3 from defendant No. 5 and out of these a sum of Rs. 6412/-remained outstanding in favour of the plaintiff and the rest had to be paid over to the creditors. The plaintiffs grievance, however, was that the defendants refused to pay these amounts, and, consequently, he brought the present suit for rendition of accounts and for recovery of such sum as may be found due to him on taking of final accounts. The plaintiff provisionally valued his suit at Rs. 2500/- only.

3. Defendants Nos. 4 and 5 allowed the suit to proceed ex parte against themselves while Nos. 1 and 3 resisted it on a number of pleas. The most important of these (and with that alone we are concerned in this appeal) was that defendant Narsinghdas had been adjudicated insolvent by the Insolvency Court at Calcutta and, therefore, the present suit was not maintainable. It was further contended in this connection that if any money was due to the plaintiff from these defendants, of which they had no knowledge, the proper course for the plaintiff was to file his claim in the Insolvency Court. This plea was rejected by both courts below and a preliminary decree under O. 20, r. 15 C.P.C. has been passed against all the defendants. It is against this judgment and decree that the present appeal has been filed by Narsinghdas alone. I

4. It is unfortunate that no body has appeared in this Court to oppose the appeal on behalf of the plaintiff.

5. Before 1 deal with the merits of the appeal, let me advert to a preliminary point which arose during the course of arguments before me, namely, that this appeal was not properly constituted. The point arose like this. The trial court had passed its decree against Narsinghdas and his sons and defendants Nos. 4 and 5 also. From that decree, defendant Narsinghdas alone appealed to the court below wherein he did not implead his sons defendants Nos. 1 and 2 or the other defendants as parties to the appeal. The appeal was dismissed by the learned District Judge by his judgment and decree under appeal. Likewise in the appeal filed by the defendant Narsinghdas in this Court, he has not impleaded the other defendant as parties to the appeal. In these circumstances the point arose for consideration whether this appeal was properly constituted. Having given my careful and anxious consideration to this aspect of the case, it (earns to me that O. 41, r. 4 C.P.C. saves the appeal from the defect of improper constitut

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