The death of a partner in a contractual partnership firm does not cause abatement of an appeal when the legal representative is not impleaded within the prescribed period, as per Order 30, Rule 4 of the Code of Civil Procedure, as amended by the High Court.

I.D.Dua, J.

1. This case has been placed before the Full Bench in pursuance of the order D/- 30th October, 1984, of D. K. Mahajan J. who felt that there was a conflict between two Division Bench decisions of this Court, one of them reported as Ghaki Mal Hukam Chand V/s. Punjab National Bank Ltd., ILR (1959) Punj 565:(AIR 1961 Punj 91) and the other as Union of India V/s. Radha Kishan Sohan Lal, AIR 1962 Punj 493. I was a party to both of them, the judgment in the first case having in fact been prepared by me.

2. In order to appreciate the point which we are called upon to decide, the relevant facts may briefly be stated. Messrs. Krishan Chand Hari Chand (Registered) Metal Merchants at Jagadhri had instituted the suit, out of which this second appeal arises, for the recovery of Rs. 780/- through Krishan Chand. This suit was dismissed by the trial Court but on appeal the judgment and decree of the court of first instance were reversed and the plaintiff-firm was granted a decree for the recovery of Rs. 672/- with proportionate costs throughout against the defendants by the learned Senior Subordinate Judge on 3rd July, 1957. The present regular second appeal was presented in this Court in August 1957 and at the hearing before the learned Single Judge an objection was raised on behalf of respondent-firm Krishan Chand Hari Chand that, Krishan Chand having died and his legal representatives having not been impleaded within the prescribed period of limitation the appeal roust be considered to have abated. This objection was met on behalf of the appellants by relying on the decision of this Court in the case of Ghaki Mal Hukam Chand, ILR (1959) Punj 1565 : (AIR 1961 Punj 91), and urging that the death of a partner of a firm does not cause a suit or an appeal to abate irrespective of the fact whether the partnership is a contractual partnership or a Joint Hindu Family firm. Purshottam Umedbhai & Co. v. Manilal & Sons, AIR 1961 S C 325, Ram Kumar V/s. Dominion of India, AIR 1952 All 695 and Mohammad AH V/s. Abraham George, AIR 1953 Trav-Co 209 were also cited in support of this view. Shri Ganga Parshad Jain on behalf of the respondents relied on the later Bench decision of this Court in the case of Radha Kishan Sohan Lal, AIR 1982 Punj 493 and also some other decisions of other High Courts for the proposition that the death of a partner does cause abatement unless the legal representatives of the deceased are impleaded within the period prescribed. Although the learned Single Judge thought that the observations of the Supreme Court in the decision mentioned above lent support to Mr. Tulis contention, nevertheless, seeing a conflict between the two Division Bench decisions of this Court, it was considered desirable to have this conflict resolved by a larger Bench.

3. It would thus be obvious that the controversy is confined within a very narrow compass, namely, whether the death of the partner through whom the firm had instituted the suit would cause abatement of this appeal when his legal representative had not been impleaded within the prescribed period. The arguments at the bar have proceeded on the assumption that the suit had been instituted by a Joint Hindu Family firm trading partnership. In the plaint, however, I find that in the very first paragraph there is a positive averment that the plaintiff-firm is a duly registered contractual partnership carrying on the business of manufacturing metal utensils at Jagadhri and Krishan Chand is a Managing Partner thereof and thus entitled to sue. In the written statement this para has been admitted to the extent that the plaintiff-firm carries on metal business at Jagadhri. The rest of the para has not been admitted !t would thus be obvious that the plaintiff firm in the instant case is not a Joint Hindu Family Trading partnership and, therefore, the question of the applicability of: the explanation added by this Court to Rule 1, Order 30 of the Code of Civil Procedure does not aris