JUDGMENT
Spencer, O.C.J.
1. The plaintiff brought O.S. No. 48 of 1917 in the Court of the Subordinate Judge of North Arcot to recover Rs. 3,162 as money advanced to a partnership together with interest and profit thereon. The first Court gave him a decree for Rs. 2,845 together with interest on Rs 1,745 against the four defendants. Of these four defendants, defendants 1 and 2 appealed. The third defendant died after the joint appeal by him and the other two defendants had been filed. His legal representative, who was the 4th defendant, did not appeal, and he was not; made a party to the appeal of defendants 1 and 2. The District Judge held that the appeal abated because the legal representative of the deceased was not brought on the record within the time allowed by law. In doing so, he seems to have over-looked Order 41, Rule 4, Civil Procedure Code, which provides that, where there are more than one defendant in a suit and the decree appealed from proceeds on any ground common to all the defendants, any one of the defendants may appeal from the whole decree and thereupon the Appellate Court may reverse the decree in favour of all the defendants. The District Judge relied on the decision in Raj Chunder Sen v. Ganqa Das Seal and Ramakati Dhur v. Raj Chunder Sen (1904) 31 Cal. 487, which was a case of an appeal in a partnership suit. The Privy Council held that, as the right to sue did not survive against the other defendants alone and the appeals could not proceed in the absence of a representative of Abhoy Churn Chowdry, who was one of the partners the appeals were rightly dismissed by the Calcutta High Court. It appears that in that case Abhoy Churn Chowdry died, and as the Privy Council observed, accounts had to be taken and there were complicated questions as to the respective relations of the parties inter se which had to be decided. These questions could not be decided without the legal representative of Abhoy Churn Chowdry being on the record. As frequently occurs in a suit, for partition or for dissolution of partnership, the decree provided for payment of sums of money to some of the defendants, and Abhoy Churn Chowdry as a partner was found to have Rs. 1,740 due to him. The partnership account could not be unsettled and a fresh settlement made without having on the record all the parties to whom money had to be paid or who should make contributions, being on the record. In Srinivasa Chari v. Gnanaprakasa Mudaliar (1907) 30 Mad. 67, this case has been distinguished as being a ruling on the point that a litigation cannot proceed without the representative of a deceased party to a final and complete adjudication. In Somasundaram Chettiar v. Vaithilinga Mudaliar (1917) 40 Mad. 846, a Bench of this Court set aside a decree, as regards the whole of the plaintiff’s claim and not merely in respect of the interest of those appellants whoso appeals’ had not abated, observing that the terms of Order 41, Rule 4, Civil Procedure Code, were wide enough to justify such a course. For the respondent it is argued that in every case of a suit for partition or partnership it is necessary to have all the parties on the record and that, if some of them will not join as appellants, they must be made respondents for the purpose of finally settling all the questions at issue. This is too broad a proposition to be accepted. It is common since and sound law that no order can be made to the prejudice of any person who is interested in a common interest such as a partnership, without that party or his legal representative being on the record. Under Order 41, Rule 20 if the appellate Court had found that the lower Court’s decree could not be varied or reversed without the legal representative of the 3rd defendant being on the record, the Court might have ordered his legal representative to be brought on the record giving a time for the appellants to bring him on the record and if the appellants failed to do so, the Court might have dismissed the appeal. But the District Judge does not put the dismissal of the appeal on that ground. Although the plaint contains an allegation as to the existence of a partnership, the decree that was asked for was for a declaration that the partnership should be dissolved from date of suit and for the payment of a certain lump-sum advanced towards the firm’s capital. There was no prayer for taking accounts due to each of the partners. In the written statement the defendants denied that any partnership subsisted. They denied also the plaintiff paid the sum of Rs. 1,745 at any time to them. If that case is true, the defendants had a common interest to have the decree in the plaintiff’s favour which was in the form of a decree for a payment of a sum of money by four persons jointly and severally, set aside and no case of taking accounts would arise, that is, on the supposition that no advance was made by the plaintiff and that no partnership agreement with him ever existed. Order 41, Rule 4 lays down the test of the right of soma of the defendants to appeal from a decree common to all of them, viz., whether the decree appealed from proceeded on any ground common to all of them. Srinath Pal v. Ram Charan Pal (1908) 7 C.L.J. 266 quoted by the respondent is a case in which in a partnership suit, where accounts had to be taken and the plaintiff’s share had to be determined, one of the respondents was not added in time. As I have already pointed out, the present oasa is one in which one of the defendants did not join as an appellant. If it was necessary to have him on the record as respondent the Court might have directed him to be joined, but, for the purpose of setting aside a decree for money in the plaintiff’s favour against several defendants without any taking of accounts inter se, it would not be necessary to have a party, from whom the appellants claimed no relief, added. The appellants do not want a decree to be made against the 4th defendant. They do not ask for any interference with his rights. Nothing is due to him under the decree and he thus cannot lose anything by any variation of the decree that may be made in appellant’s favour in consequence of this appeal. The setting aside of the money decree and the dismissal of the plaintiff’s whole suit which the appellants seek to obtain by this appeal, is thus not a relief requiring the presence of the 3rd defendant or his legal representative before it can be given. The lower Appellate Court’s decree must, therefore, be reversed. This Second Appeal must be allowed and the first Appeal remanded to the lower Appellate Court for fresh hearing and disposal on the merits. The respondent must pay the appellants’ costs in this Court. Costs in the lower Court will abide and follow the result. The appellants will get a refund of the Court foes paid for this appeal.
