MUSST JOLAKHA KHATOON Vs. SUSHIL K MONDAL

JUDGEMENT

(1.) This Rule was issued on an application under section 115 of the Civil Procedure Code and is directed against an order dated May 18, 1978, passed by the learned Additional District Judge, 6th Court, Alipore, in Money Appeal No.64 of 1975 allowing an application under Order 22 Rule 9 of the Code of Civil Procedure. The substituted heirs of the principal respondent are the petitioners before us.

(2.) The two brothers Sushil and Sunil, the opposite party Nos.1 and 2 instituted Money Suit No.2 of 1973 against one Md. Khalil and another claiming arrears of rent from February 1970 to January 1973 from Md. Khalil, the lessee. The suit was dismissed on March 31, 1975, and the said two brothers preferred an appeal being Money Appeal No.64 of 1975, as aforesaid.

(3.) During the pendency of the said appeal, the principal respondent Md. Khalil died on June 22, 1975. On September 12, 1975, that is, within the period of limitation the appellants filed an application for substituting Sk. Gulzar (one of the petitioners before us), the father of the deceased and a son by the name of Md. Rashid in place and instead of the deceased principal respondent Md. Khalil. The appellants filed a supplementary application on November 10, 1975, for substituting 7 heirs of the deceased Md. Khalil including the said Sk. Gulzar on an allegation that they have further come to learn that Md. Khalil at his death left behind some more heirs and legal representatives in his wife, two other sons and two daughters. In this application, the petitioners claimed that the son who was sought to be substituted earlier by the name of Md. Rashid should be described in the alias name of Abdul Wadood. The learned District Judge treating the two applications to be one allowed the prayer for substitution on the basis that such an application had been filed in time by an order dated November 13, 1975. The appeal was then transferred to the 7th Court of the learned Additional District Judge.