- (1.) A suit for possession was filed against several defendants. Puttu and Thakur, two brothers were also arrayed as defendants to the suit. The suit was decreed. Thakur alone appealed to this court and impleaded as respondents, the plain-tiff and the other defendants. In April 1949 the sole appellant, Thakur died. No application was filed to bring his legal representatives on the record within the period of limitation. On 11th December, 1950, an application was filed on behalf of Puttu in which the prayer was as follows : "wherefore it is prayed that the name of the applicant be struck off as respondent No. 4, he be transposed to the array of the appellants in place of Thakur deceased and be allowed to prosecute the appeal against the respondent according to law. "
(2.) IN the application it was mentioned that Puttu was the sole legal representative of the appellant Thakur who had died. Notice of this application was issued to the other respondents. The plaintiff respondent contested the application and a learned single Judge directed that the application along with the appeal be put up be-fore a Bench for decision. No application has been filed under Section 5 of the Limitation Act as the contention of the learned counsel for puttu is that the death of Thakur did not result in the abatement of the appeal since Puttu was already on the record arrayed as a respondent.
(3.) LEARNED counsel has relied on Order 1, Rule 10 C. P. C. and Order 22, Rr. 2 and 3 of the Code. Order 1, Rule 10 C. P. C. gives a discretion to the Courts to correct an error in the array of parties and under Sub-rule (1) of Rule 10 if there is a bona fide mistake, the mistake can be corrected by the Court. Under Sub-rule 2, the Court has the right to strike out the names of any party improperly joined and add any party the addition of whose name may be necessary for the proper decision of the case but this has to be done subject to the provisions of the Indian limitation Act. Order 22, Rule 2 provides that : "where there are more plaintiffs or defendants than one, and any of them dies and where. the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. ";