Hari Swarup, J. - (1.) CHAUDHARI Daulat Ram Singh has filed this appeal against the decree passed in suit No. 6 of 1934 in terms of the reliefs claimed in the plaint were in the following terms: (a) That it be declared that by virtue of the Will dated 24 -4 -1932 executed by Chaudhari Ganga Sahay (the Plaintiff was?) the legal representative of Chaudhari Ganga Sahay as far as the properties comprised in suit No. 7 of 1931 in the court of II Subordinate Judge, Kanpur, are concerned and that he was entitled to be substituted in place of Chaudhari Ganga Sahay in the case aforesaid. (b) Costs of the suit be awarded to the Plaintiff from Defendant No. 1 or any other Defendant who may contest this suit. (c) Any other relief that may be necessary be given to the Plaintiff.
(2.) SUIT No. 7 of 1931 in the court of the II Subordinate Judge, Kanpur had been filed by Chaudhari Ganga Sahay. During the pendency of the suit the Plaintiff died and the question arose about bringing on record his legal representatives. The present Plaintiff Swami Dayal had applied for being substituted in place of Chaudhari Ganga Sahay. There were other Applicants also. The court held Under Order XXII, Rule 5, Code of Civil Procedure that Smt. Indrawati and Smt. Amrawati were the legal representatives of Chaudhari Ganga Sahay and directed that they be substituted in the suit as legal representatives of Chaudhari Ganga Sahay. Swami Dayal filed a revision against that order in this Court and that was dismissed on 17 -8 -1963. The learned Counsel for the Appellant has contended that the suit for the reliefs claimed is not maintainable. We agree with his contention. Order XXII, Rule 5, Code of Civil Procedure runs as follows: Where a question arises as to whether any person is or is not the legal representative of a deceased Plaintiff or a deceased Defendant, such question shall be determined by the Court. The word "Court" mentioned in Order XXII, Rule 5 refers to the 'court' in which the suit is pending. That court alone has the jurisdiction to determine as to who will be permitted to continue the suit which is pending before it. Every person has a right to file a suit but the continuance of the suit filed by somebody else can be only under the provisions of Order XXII Code of Civil Procedure. If the Court trying a suit determines that a particular person is not entitled to continue the suit as the legal representative of the Plaintiff then that order is final so far as that particular suit is concerned. No separate and independent suit can be filed for a declaration that a particular person is entitled to continue another suit which had not been filed by him on the ground that he was the legal representative of the Plaintiff in the earlier suit; and no suit can be maintainable for giving a declaration that a particular person is entitled to be substituted in place of the Plaintiff in another suit. In our opinion, the suit as framed was not maintainable.
(3.) IN the result, the appeal is allowed, the decree of the court below is set aside and the Plaintiff's suit is dismissed as not maintainable. This point had not been specifically raised in the written statement and no body has appeared to oppose the appeal so no order is made as to costs.;