MD. EUSUF MONDAL Vs. MD. OMAR ALI

JUDGEMENT

(1.) The plaintiffs opposite parties nos. 1 - 14 instituted a suit in the first court of the Munsif at Basirhat being Title Suit No. 128 of 1969 for recovery of possession on a declaration of title of 55 dec. of land of plots nos. 5599 and 5602, (eastern portion) of khatian no. 753 P. S. Basirhat, 24 - Parganas. The suit was decreed exparte on Sept. 29, 1972. The case of the petitioners who are some of the defendants is that summons of the suit was suppressed on practising fraud on court and they became aware of the decree for the first rime on June 24, 1973. They filed a petition under Order 9 Rule 13 and also filed another petition for stay of execution of the connected execution case, being Title Execution case No. 21 of 1972. The petition for stay was rejected on May 4, 1974. The petitioners thereupon moved this court in revision against the order refusing stay and on their application the connected Rule was issued which has now come up for hearing and, as it appears, is not opposed.

(2.) During the pendency of the Rule in this court three of the opposite parties being opposite parties nos. 3, 7 and 8. who were some of the plaintiffs in the suit,died and notes of abatement were recorded in respect of the said opposite parties. No application for setting aside abatement or for bringing in their heirs and legal representatives on record has been field.

(3.) It would prima facie appear that in the events that have happened, namely the death of some of the plaintiffs in respect of the joint decree the entire Rule has abated Mr. Gopal Ch. Mukherjee, learned Advocate appearing for the petitioners has, however, contended firstly that no substitution in respect of matters in revision in this court is necessary. He relied on the decision in Md. Sadaad AH Vs. Administrator of Lahore Corporation, AIR 1949 Lahore 186 in which it was held that Order 22, Rule 3 is not applicable to revisions in the High Court and revision petitions should not be dismissed on the ground of abatement. In Anandamoni Vs. Rudra Mahanti. 21 I. C. 407 a Division Bench of this Court, Sir Ashutosh Mukherjee presiding, held that the principle recognised in Rule 3 of Order 22 of the Code is applicable not only to suits but also to proceedings in revision. The matter is no longer in controversy in view of the observation of the Supreme Court in Shankar Ramchandra Vs. Krishnaji, AIR 1970 SC p. 1. at p. 4 is set out below :