The heirs of Gopikishan were necessary parties to the appeal and that the lower appellate court's view to that effect was correct.

( 1 ) THIS appeal by the plaintiff 1 is directed against the affirming decree of the lower appeal Court by which his claim for recovery of a loan, together with interest, amounting in all to Rs. 1,500/- from the defendants 1 and 2 was dismissed on the ground that appeal was not maintainable for non-joinder of necessary parties.

( 2 ) THERE was an unregistered partnership of Shrikishan (plaintiff 1), Gopikishan (father of plaintiffs 2 and 3) and Bawalram called Bawalram Moolchand which, it was claimed, advanced, on 19th September, 1952, a loan of Rs. 1,200/- to the defendants 1 and 2. On 17th September 1955, Shrikishan alone filed the suit in his own name impleading Bawalram and the heirs of Gopikishan (who was already dead) as defendants because they did not agree to join as co-plaintiffs. However, during the pendency of the suit, the heirs of Gopikishan were, at their own request, transposed as plaintiffs 2 and 3.

( 3 ) UPON contest, the Court of first instance dismissed the claim on merits. Thereupon, Shrikishan (plaintiff 1) alone filed the first appeal without impleading the heirs of Gopikishan as parties. During the pendency of that appeal, Shrikishan filed three applications. In the first application dated 22nd March 1958, he averred that he omitted to implead the heirs of Gopikishan as parties to the appeal inadvertently and on account of a bona fide mistake and prayed that either the appeal be heard on merits and a decree be passed under Order 41, Rule 4, Civil Procedure Code, in favour of all the original plaintiffs or leave be granted under Order 41, Rule 20 of the Code to implead the plaintiffs 2 and 3 as parties to the appeal. By the second application dated 25th March, 1958, he sought leave under Order 6, Rule 17, of the Code to amend the plaint with a view to showing that he brought the suit on behalf of the dissolved firm Bawalram Moolchand. By the third application dated 1st September, 1958, he sought leave to urge a new ground, namely, that the heirs of Gopikishan, not being partners of the firm, were not necessary parties. The lower appeal Court dismissed these three applications and also, as already indicated, dismissed the appeal.

( 4 ) THE only ground on which the view of the first appeal Court is assailed is that Section 45 of the Contract Act does not apply to a case governed by mercantile custom and that the representatives of a deceased partner are not necessary parties to a suit for recovery of a debt which accrues due to a partnership in the lifetime of the deceased partner. The learned counsel for the plaintiff placed reliance upon Mool Chand v. Mul Chand, ILR 4 Lah 142 : (AIR 1923 Lah 197), Deoshi v. Bhikamchand, AIR 1927 Bom 125, and the following observations in the commentary of Pollock and Mulla on the Indian Contract Act:

"it seems to be the better opinion that the representatives of a deceased partner are not necessary parties to a suit for the recovery of a debt which accrues due to the partnership in the lifetime of the deceased partner. "

(Eighth Edition, page 320) The view taken by the Lahore High Court in Mool Chand's case, ILR 4 Lah 142 : (AIR 1923 Lah 197), was not approved in Hari Singh v. Karam Chand Kanshi Ram, ILR 8 Lah 1 : (AIR 1927 Lah 115), where it was observed : "i am unable to accept the view that the clear effect of Section 45 of the Indian Contract Act has been modified by the Civil Procedure Code, save as appears in Order XXX, which is confined to cases where suits are brought not by individuals but in the name of the firm under which they are trading. " (Page 12) So far as the Bombay case is concerned, no doubt it supports the contention. But it is based on the observations of Farran, J. , in Motilal Bechardass v. Ghellabhai Hariram, ILR 17 Bom 6 at p. 14, where the learned Judge applied, though not without some 'hesitation, the old practice even though that practice could not be supported on the basis of the words "as between him and them" occurring in Se