MANUJENDRA DUTT CHOWDHURY Vs. JNAN RANJAN SOMADDAR

JUDGEMENT

(1.) The question which arises on this rule arises in the following manner. The petitioners before us who were plaintiffs in the suit brought a suit for accounts. On the 24 June a preliminary decree for accounts was passed in favour of the plaintiffs. The original defendant, the father of the opposite parties, appealed against the decree of the 24 June 1920 and on the 30 November in that year the District Judge made an order staying further proceedings pending the hearing of the appeal. The original defendant, the father of the opposite parties, died on the 25 September 1921 and on the 21 February 1922 the fact of his death was brought to the notice of the Court. It is stated that the plaintiffs were not represented in those proceedings and that, accordingly, they could not come to know of the death at that time. On the 21 February 1922 an order was made that the appeal had abated and on the 3 March 1922 the appeal was dismissed. On the 20 April 1923 records were returned to the lower Court. On the 25 May 1923 an order was made for a Commissioner to take the accounts. An order was also made at this time setting aside the abatement which was said to have occurred owing to the death of the original defendant. The learned Judge subsequently withdrew this order as he said that there was no statement in the petition as to the date of the defendant's death. At any rate on the 25 May 1923 the death of the defendant became known to the plaintiffs. On the 4 July 1923, an application for substitution of the heirs of the deceased defendant was made by the petitioners. But this was refused and subsequently this Rule was obtained. It seems to us, assuming that the death was not known to the plaintiffs until the 25 of May 1923, that they have not explained the delay that had occurred between that date and the 4 July 1923 and we think that the Court below was right in the order that it made refusing the application for substitution on the grounds which are stated in the order.

(2.) A further point, however, has been raised before us on this rule, namely, that the case is governed by the provisions of Order 22, Rule 10 and that consequently no question of time arises and that an order should have been made setting aside the abatement. We were referred in support of this proposition to various cases reported under the old Civil V.C. and under Section 368 to which corresponds Order 22, Rule 4 and to Section 372 to which corresponds Order 22, Rule 10. The case mostly relied on under the old Code was the case of Surendra Keshub Roy V/s. Khetter Krishto Mitter [1903] 30 Cal. 609. In that suit it was decided on that directions to take an account in a suit the suit is still pending within the meaning of:, Section 372 of the Civil P.C., until the final order on the taking of the account is made and that the right to apply in such a suit to have the death of a defendant recorded and the names of his heirs substituted on the record accrues from day to day and is not barred under Art. 171 of the second schedule of the Limitation Act and it was further decided that Section 368 which as we have stated, corresponding to Order 22, Rule 4, has no application to a case like this. Under the old Code, therefore, it was held, that where a preliminary decree had been passed and one of the parties subsequently died the matter fell not under Section 368 but tinder Section 372 and consequently we are asked to say that the present case falls not under the provisions of Order 22, Rule 4, but under the provisions of Rule 10 of that order. As against this we were referred on behalf of the opposite parties to the fact that in Section 368 of the old Code the words "before decree," occur and it is stated that the omission of these words from Order 22, Rule 4 shows that an alteration in the law was intended and that it was intended that the provisions of Order 22, Rule 4, should operate as well before as after a preliminary decree in a suit for accounts. Consequently it is argued that the provisions of Order 22, Rule 10 has no application and that the order passed by the Court below was correct and we were further referred, in support of this contention, to the case of Bhutnath Jana v. Tarach and Jana [1921] 53 Cri.L.J. 115, where it was held by a Division Bench of this Court that although a mortgagee has three years to apply for making a preliminary decree final, if the judgment-debtor died within that period the mortgagee had to apply within six months (this now being 90 days) to have his heirs substituted and that Order 22, Rule 4, applied to a case of that kind. I was inclined to think at first that the contention of the petitioner was correct and that the first four rules of Order 22, apply to deaths occurring before a preliminary decree had been passed and that the provisions of Order 22, Rule 10 apply to the cases of deaths after passing a preliminary decree. But I think that the omission of the words in the old Section 368 before decree is very significant and that it is not possible now to say that Order 22, Rule 4 does not cover a case of this nature and I am not prepared to say that the decision in the case of Bhutnaili Tana V/s. Tarachand Tana [1921] 53 C.L.J. 115 is not correct. Consequently, we think that the order of the Court below should stand and that this Rule should be discharged.

(3.) We make no order as to costs. Mukerji, J.--I agree. fa