( 1 ) THIS is plaintiffs' appeal against the dismissal of a part of their claim for damages by the 2nd Civil Judge, 1st CJass, Sagar, in civil suit No. 11-B of 1947.

( 2 ) THE suit was instituted by Pyarelal and Pan-nalal, sons of Jankiprashad, Babulal, and Narayan-dass and Bhagwandass, sons of Babu Surajdin. They were carrying on business of purchase and sale of grain as partners of a registered firm styled durga Prashad Ganesh Dass, shortly called Durga Ganesh. They entered into a contract with the defendant on 6-7-1947 for purchase of his stock of linseed at satna. Out of this stock, a lot of 2500 bags was lying in the godown of the defendants' commission agent, Ramchand Rampratap, which was sold to the plaintiffs. O. R. Satna at Rs. 44/13/9 per bag of 90 seers net, after packing them in new gunny bags. The lower Court has found that the defendant broke the contract and was liable in damages to the plaintiffs. It has, however, determined the damages at the rate prevailing at Satna, arid not at Lillosh (Calcutta) on 28-7-1947 when the contract was broken. In this view, it awarded to the plaintiffs, Ks. 1914/1/- for damages instead of Rs. 9524-9-0 is claimed. This appeal was accordingly filed by the plaintiffs for claiming the balance of Rs. 7610/8/ -.

( 3 ) DURING the pendency of the appeal, Pannalal died on 17-2-1954 and his legal representatives were duly brought on record. Pyarelal meanwhile also died on 1710-1954. An application for substitution of his legal representatives was filed on 20-1-1955 after the period of limitation. Another application for setting aside the abatement was filed on 25-2-1955. These applications were dismissed by an order of this Court on 28-3-1955, and a Letters Patent appeal from the order was also dismissed on 18-7-1955 in motion hearing. The appeal has thus abated so far as pyarelal is concerned. The question is if it has abated as a whole.

( 4 ) THERE appears no doubt that the suit is governed by Section 45 of the Indian contract Act, (Aet No. IX of 1872), which is reproduced below:

"45. Devolution of joint rights.--When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and after the death of any of them, with the representative of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly. "

The plaintiffs were joint promisees, and therefore, had a joint right of suit, and consequently of appeal. Accordingly, on the death of one of them, the right to continue the appeal vested jointly in the survivors and the legal representatives of the deceased. In this connection, Ganeshmull v. Sohanlal, ILR 1955 Nag S3: (AIR 1956 Nag 111) (A), which was relied upon by the learned counsel for the appellants, has no application as it deals with the case of joint promisors and not of joint promisees. Therefore, the legal representatives of Pyarelal were necessary parities to the appeal.

( 5 ) IT was, however, contended that the matter is governed by Order 30, Rule 4 of the Code of Civil Procedure as the plaintiffs were partners, and although they had instituted the suit in their own names, the firm as such was really the plaintiff. This contention was also raised in Hari Singh v. Karam Chand Kanshi Ram, ILR 8 lah 1: (AIR 1927 Lah 115) (B), in which it was negatived on the ground that order 30, Rule 4 of the Code of Civil Procedure did not apply as the suit was not instituted in the name of the firm. Whether or not, this view may be correct, it appears that Order 30, Rule 4 only deals with the form of suits land does not affect the question as to whether the representative of the deceased (party) was or was not a necessary party to the suit.

( 6 ) AN attempt was also made to bring the case within the four-corners of Order 41, Rules 4 and 33 of the Code of Ci

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