Satish Chandra, C. J. - (1.) :-
(2.) THIS revision is directed against an order dismissing an application for substitution of the heirs of deceased defendant No. 1 and declaring that the suit has abated in toto. It appears that the plaintiff-applicant filed a suit for an order that the dispute between the parties be referred to arbitration in accordance with the arbitration agreement between the parties and for a decree in favour of the plaintiff in accordance with the award of the arbitrator. During the pendency of the suit Ayodhya Prasad, defendant No. 1, died April 10, 1977. Within the prescribed period of limitation, the plaintiff, on May 24, 1977, filed an application stating that Ayodhya Prasad had left two sons Lakshmi Narain and Prem Narain who were already parties as defendants 3 and 4. Be prayed for consequential amendments in the array of parties. An affidavit in support of this application was filed by the piaintiff on September 14, 1977.
(3.) THE defendants opposed the application- He alleged that Ayodhya Prasad, defendant No. 1 had left his widow Smt. Chandra Devi who was also his heir and legal representative entitled to be substituted in place of Ayodhya Prasad. THE plaintiff had not sought her substitution. The trial court held that the plaintiff knew that Smt. Chandra Devi was the widow of defendant No. 1 Ayodhya Prasad. He, however, did not apply for her substitution in his place. This lapse was not due to any bonafide error. Failure to implead one of the heirs inspite of full knowledge resulted in the abatement of the suit. It was further held that the suit was for referring the matter to arbitration. The decree was not severable as against defendant No. 1. Hence the entire suit abated. Accordingly the suit was declared to have abated as a whole.;