ORDER 30 CPC | Appeal Filed by Firm Does Not Abate on Death of Partners: Calcutta High Court

“Failure to Substitute Legal Heirs of Deceased Partners Will Not Lead to Abatement When Suit Is Filed Against Firm Under Order 30 CPC”, In a significant decision Calcutta High Court ruled that a second appeal filed in the name of a partnership firm does not abate on the death of its partners, where the suit and appeals are framed under Order XXX of the Code of Civil Procedure. Justice Hiranmay Bhattacharyya held that "it shall not be necessary to join the legal representative of the deceased as a party to the suit” when a firm is sued under Order 30 Rule 1 CPC, reaffirming that litigation continues through the firm’s name despite partner deaths.

The ruling settles a long-standing question regarding abatement of proceedings due to death of partners, particularly in firms with only two members. Importantly, the Court allowed the appeal to proceed through the reconstituted firm and its existing partners, rejecting the respondent landlord’s plea for dismissal of the appeal as abated.

“Order 30 Rule 4 CPC Carves Out an Exception to General Rule of Abatement in Case of Partner’s Death”

The dispute originated from an eviction suit filed in 1995 by Khaitan Consultants Ltd. against tenant M/s P.L. Mullick & Co., alleging subletting of the suit premises without consent. The firm was the sole defendant, and no individual partners were impleaded. One partner, Baldev Mullick, died during the trial. The suit was decreed in 2003 and confirmed in appeal in 2004. A second appeal was then filed in 2005 by the firm.

While the second appeal was pending, the other named partner, Paresh Nath Mullick, died in 2021. The respondent then applied to dismiss the appeal as abated (CAN 11 of 2025), contending that the firm had only two partners and upon their death, the appeal could not survive. The appellant firm, however, asserted that it had been validly reconstituted in 2013 before the death of P.N. Mullick, and sought permission to continue the appeal in the name of the firm (CAN 12 of 2025).

 “Firm Had Been Reconstituted Before Partner’s Death”

The Court held that the suit was filed against the firm under Order XXX Rule 1 CPC, and therefore, Order XXX Rule 4 would squarely apply. Quoting Rule 4(1), the Court emphasized:

“It shall not be necessary to join the legal representative of the deceased as a party to the suit.”

Justice Bhattacharyya further clarified that Order XXX Rule 4 overrides the general abatement provisions under Order XXII of the CPC and Section 45 of the Indian Contract Act, stating: “From the aforesaid discussion it follows that Order 30 Rule 4(1) being a special provision, it would necessarily exclude the operation of the general provisions contained in Orders 1 and 22 so far as they relate to the addition and substitution of parties in case of death of partners.”

The Court drew support from several authoritative precedents, including Anokhe Lal v. Radhamohan Bansal, (1996) 6 SCC 730, and Upper India Cable Co. v. Bal Kishan, (1984) 3 SCC 462. It held that even if the legal representatives of deceased partners are not substituted, the appeal does not abate.

Landlord’s Knowledge of Reconstitution Defeats Abatement Argument

On the crucial factual point of whether the firm continued to exist after the partner's death, the Court relied heavily on the landlord's own conduct. In 2014, Khaitan Consultants Ltd. had filed a contempt petition (CPAN 2118 of 2014) against the new partners of the reconstituted firm, thereby acknowledging their role and existence within the partnership. The Court noted:

“This Court holds that the 1st respondent has admitted the fact that the firm was reconstituted… and cannot now throw a challenge to the reconstitution of the firm at such a belated stage.”

Further, even the obituary notice for P.N. Mullick referred to him as the “erstwhile partner” of the firm, which the Court read as evidence that he had retired before his death. Thus, there was no legal or factual impediment to the appeal proceeding in the name of the firm through its new partners.

Attempt to Rely on Dissolution and Status Arguments Fails

The respondent had argued that the firm, having only two partners initially, stood dissolved automatically on the death of the first partner, relying on Section 42(c) of the Indian Partnership Act and decisions like Mohammad Laiquiddin v. Kamala Devi Misra. But the Court rejected this line of reasoning, stating that:

“The issue in the case on hand is not whether the heirs of the deceased partners automatically became the partners of the firm.”

Instead, the Court emphasized that reconstitution of the firm prior to partner’s death is legally permissible, and once the firm was reconstituted in 2013 by admitting new partners before retirement of the existing ones, it continued to exist legally.

Prayer for Stay of Judgment Rejected, But Hearing Deferred

Following the judgment, the respondent sought a stay on the order, but the Court rejected it, citing an earlier direction by the Supreme Court (dated October 6, 2025) requiring time-bound disposal of the long-pending appeal. However, in the interest of fairness, the Court deferred further hearing till January 28, 2026, to allow the respondent time to approach the Supreme Court.

“This Court has held that the appeal has not abated… and is not inclined to allow the prayer for stay… however, hearing of the second appeal is adjourned for a limited period for the ends of justice.”

No Abatement of Appeal; Reconstituted Firm Can Continue Proceedings

This decision provides vital procedural clarity for litigation involving partnership firms, especially in situations where partners die during the pendency of suits or appeals. The High Court held that:

• Order XXX Rule 4 CPC provides a specific exemption from substitution of legal heirs

• Appeals by firms do not abate on partner’s death

• Reconstitution of firm prior to death maintains continuity

• Appeal can validly proceed in the name of the firm

By affirming the autonomy of partnership firms under procedural law, the judgment strikes a balance between technical rules of abatement and substantive justice, especially in landlord-tenant litigation involving long-standing partnerships.

Date of Decision: 06 January 2026