HARISHARANPANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application is directed against an order by which the prayer made on behalf of the petitioners for their substitution in place of one Umraon Pandey, Plaintiff No. 3 who died on 9-4-1986 during pendency of the suit, has been rejected,

(2.) It would appear from the application for substitution, a copy whereof has been made as Annexure-1 to the revision application, that the petitioners made the aforesaid prayer for their substitution on the basis of the registered will dated 3-7-1976 said to have been executed by the aforesaid Umraon Pandey in their favour in respect of his properties which are also subjectmatter of the suit. It would appear from the impugned order that the aforesaid prayer has been rejected mainly on the ground of delay.

(3.) The question of delay and/or setting aside abatement of a suit arises only in a case where the question of substitution is covered by the provision of Rules 3 and 4 of Order XXII of the Code of Civil Procedure and not in a case where Rule 10 of Order XXII applies. Rule 10 provides, Inter alia, that in cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. It is true that in the instant case the will has been executed prior to the filing of the suit i. e. in the year. 1976 but on account of the death of the testator taking place on 9-4-1986, the interest in the property in question must be deemed to have been devolved on the legatees during the pendency of the suit. It is well established that there is no limitation for making an application under Order XXII, Rule 10 of the Code. The order of the court below, accordingly, has to be set aside on this ground alone.