- (1.) THIS petition has been filed against the order of the trial court impleading respondents Nos. 10 and 11 as defendants in the suit and the order passed in revision filed by the petitioners against that order. The parties were im-pleaded by the trial court under Order 1, Rule 10 (2) of .the Code of Civil Procedure and the revisional Court held that the trial court had committed no error of jurisdiction in directing the impleadment.
(2.) THE suit was one for redemp tion of mortgage. One of the mortgagees had died during the pendency of the suit and his heirs had not been impleaded by the plaintiff who was seeking redemp tion. The heirs of the mortgagee were ad mittedly necessary parties in the suit for decision of the controversy. An applica tion had been moved by the plaintiff be yond time for impleading the heirs under Order 22, Rule 4, C.P.C. but that applica tion was dismissed as time barred. Learned counsel for the peti tioner contends that once the application under Order 22, Rule 4 is dismissed, the bar of Order 22, Rule 9 comes in the way even in the impleadment of parties by the court under Order 1, Rule 10 (2) C.P.C. We are unable to accept this con tention. Order 22. Rule 4 gives a party a right to get legal representative brought on record. Rule 9 of Order 22 bars the institution of a fresh suit on the same cause of action. The effect of Rules 4 and 9 of Order 22 is to abate the suit against the deceased and to take away the plain tiff's right to institute a fresh suit against his legal representatives. This, however, does not mean that the suit cannot con tinue with the parties as they remain and are subsequently added under some other provision of law. Order 22, Rule 9, C.P.C. affects the rights of a party, but does not take away the right of the court to bring on record any person whom the court considers necessary for effectually ad judicating upon and settling of the ques tions involved in the suit. Sub-rule (2) of Rule 10 of Order 1 of the Code of Civil Procedure deals with special cases where the impleadment of a party is necessary in order to enable the court to effectu ally adjudicate the questions involved in the suit. If the necessary conditions exist, the court has the power to direct the im pleadment of any person. The inaction on the part of a plaintiff to implead or bring on record a person as defendant cannot affect the right of the court to implead him as a party in the suit in exercise of its jurisdiction under Order 1, Rule 10 (2). C.P.C.
(3.) IN support of his contention to the contrary learned counsel relied upon a decision of this Court in Tularam v. Mangaloo (AIR 1954 All 10). In the case the trial court after dismissing the appli cation for bringing on record the legal representative also rejected the prayer for impleading the person as party under Order 41, Rule 20, C.P.C. Learned coun sel has also relied on the decision in Md. Faruq v. Azizul Hasan, (AIR 1935 Oudh 329). In that case the legal representa tives were sought to be brought on re cord in appeal and it was not allowed. Both these cases deal with the provisions of Order 41, Rule 20 which provides for an entirely different .situation. Rule 20 of Order 41 runs as follows: "Where it appears to the court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a res pondent." Rule 20 contemplates a situation where the person is already a party. It gives the court the power to treat such a person as party even though the appellant has not, impleaded him. It has nothing to do with the case of legal representatives who originally were not and could not have been, parties to the suit. These cases have no applicability to the circumstances of the present case. ;