SATYARANJAN MUKHERJEE Vs. BRAJENDRA NATH DAS

JUDGEMENT

(1.) THIS Rule was obtained by some of the defendants in a suit for partition on a Revisional application and the only point raised is as to whether the suit having abated as against one of the defendants on his death, the court could have added the legal representatives of the said defendant under Order 1 Rule 10 (2) read with section 151 of the Code of Civil Procedure.

(2.) THE material facts are not in dispute. The plaintiff/opposite party instituted Title Suit no. 71 of 1971 of the 2nd Court of the learned Subordinate, Judge, Alipore, claiming partition in respect of the suit property in his share. The defendant No. 4 in that suit Monmohan Mukherji died on March 20, 1972. No steps were taken to bring on record the legal representatives of the said deceased defendant within the time prescribed. Much too later an application was filed by the plaintiff under Order 22 Rule 9 of the Code of Civil Procedure for substituting the legal representatives of the said deceased defendant No. 4 on setting aside abatement. That application was registered as Miscellaneous Case No. 2 of 1973. Pending the said miscellaneous case, the plaintiff filed an application under Order 1 Rule 10 (2) read with section 151 of the Code of Civil Procedure (out of which the present Rule arises) praying for adding the legal representatives as parties to the suit. Such an application was filed on October 11, 1974. The plaintiff did not press his application under Order 22 Rule and of the Code when it came up for hearing and allowed the miscellaneous case to be dismissed for non-prosecution but he pressed the aforesaid application for addition of parties and the said application was allowed by the learned Subordinate Judge by an order dated December 13, 1975. Feeling aggrieved by the said order some of the defendants have preferred the present Revisional application.

(3.) MR. Mitra appearing on behalf of the petitioners has strongly contended that once the application under Order 22 Rule 9 of the Code had been dismissed the suit abated as a whole and the learned Subordinate Judge had lost all his jurisdiction to add parties to such a suit on any application under order 1 Rule 10 (2) or section 151 of the Code. Secondly, it has been contended by Mr. Mitra that once abatement takes its effect it could be set aside only in the "manner prescribed by the Code, namely, Order 22 Rule 9 thereof. Once an application under the said provision fails the court no longer possesses any power either under Order 1 Rule 10 (2) or section 151 of the Code to add the legal representatives of the deceased defendant and thus circumvent the effect of the abatement, Mr. Mitra had relied upon a number of decisions in support of his contention.