STATE OF WEST BENGAL Vs. KIRAN CHANDRA

JUDGEMENT

(1.) THIS Rule was obtained by the state of West Bengal on an application for substitution after setting aside abatement and also for recalling an order dated September 10, 1976 recording such abatement in the present Rule. The parent Rule was taken out from this Court on February 11, 1975 on an application under Article 227 of the constitution. The notice of the Rule having been issued, the peon reported the sole opposite party be dead. That is the report dated March. 20, 1975. After several adjournments to steps, for substitution having been taken the aforesaid order of abatement was recorded on September, 10, 1976.

(2.) IN the present application it has now been I clearly acknowledge: that the ,sole opposite party died on october 22, 1973 though it is claimed that the petitioner came to know of such date of death only on June 6, 1975. "be that as it may, since the sole opposite party in the parent Rule had did before the Rule itself was taken out from this Court, the Rule was obtained against a dead man and a mere erroneous record of abatement by the Court which had no knowledge of the date of death does not alter the situation. Such being the position, since the Rule itself was taken out against a dead person there was no Rule in the eye of law validly issued by this court and there can be no substitution on setting aside abatement. The whole application appears to be entirely misconceived and as such the application. is dismissed and the Rule is discharged with costs in favour of the appearing opposite party-hearing fee being assessed at ten gold mohurs. Anil Kr. Sen and , b. C. Chakrabarti. JJ. A. B.