Full Judgment
1. A suit was filed by a firm styled Raja Ram Dalal for the recovery of money alleged to have been due by the defendant. During the course of that suit Raja Ram, who was described as the manager of that firm, died and the munim of that firm continued to prosecute the suit without taking any steps to bring the other partners of the firm if any, on the record. Subsequently an application was filed by the sons of Raja Ram to be brought on the record in the place of Raja Ram, deceased. That application was dismissed on the ground that the suit had already abated. An appeal was filed from that order, which was dismissed on the ground that it was not maintainable. The sons of Raja Ram then made an application to set aside the abatement and that application was granted and the delay excused in consideration of the time spent by them in prosecuting the appeal from the order refusing to bring them on the record. In other words the abatement was set aside by the Court of first instance in view of the provisions of Section 14 of the Indian Limitation Act, and the sons of Raja Ram were allowed to proceed with the suit as the legal representatives of the deceased. The case was than heard on the merits and eventually decreed against the defendant. From the decree passed in the suit an appeal was lodged by the defendant in which one of the objections taken by him was that the abatement was improperly set aside. The Court below realised to go into that question, holding that an order setting aside an abatement could not be challenged because it was not appealable. It then proceeded to discuss the other points raised in the appeal, dealing with the merits of the case and upheld the decree of the trial Court. In this Court it is urged that the lower appellate Court had jurisdiction to entertain the objection raised by the appellant against the order of the learned Subordinate Judge, setting aside the abatement, and that Section 14 of the Indian Limitation Act had not been properly applied. If the suit be deemed to have originally been filed by a firm consisting of two or more partners as the plaint seems to suggest, no difficulty arises in the case, because the sons of Raja Ram would have the right to continue the suit which Raja Ram had filed on behalf of the firm for the recovery of the money alleged to be due to the firm and no question of abatement would arise. It the suit be supposed to have been filed by Raja Ram to recover money personally due to him, the Court of first instance had still discretion under Section 5 of the Indian Limitation Act to set aside the abatement on sufficient cause being shown for it, and although the Court below was not justified in refusing an appeal to entertain the plea raised by the defendant against the validity of that order we are not inclined to interfere with the discretion which the Court of first instance had in some form or another exercised in the matter. The whole case has been tried on the merits and the questions at issue have been adjudicated on by both the Courts and there is no reason for interfering with the decree which has been passed in the case. The appeal is therefore dismissed under Order 41, Rule 11, Civil P.C.