Bankim Chandra Ray, J. - (1.) This is an application under Section 115 of the Code of Civil Procedure and it is directed against the order dated May 10, 1974 passed by the Subordinate Judge, Third Court, Alipore in Misc. Case No. 7 of 1971 holding that the suit abated and allowing the Misc. Case.
(2.) The petitioners as plaintiffs instituted a suit being Title Suit No. 68 of 1970 in the Third Court of Subordinate Judge at Alipore fora declaration that the decree passed in Title Suit No. 5 of 1969 was null and void and for a decree for specific performance of the contract of exchange of the disputed property being premises No. 16 and 16(A) Prince Anwar Shah Road, described in Schedule A to the plaint against defendants 1 to 7 and for a permanent injunction restraining the defendant No. 8 Amal Das Gupta from withdrawing their (or?) receiving payment of whole or in part or deal in any way with the compensation money lying in deposit with the Land Acquisition Collector in I.A. Case No. T.W.S.S. 119 of 1967 and for other ancillary reliefs. The case of the plaintiffs is that their father Prasanna Kumar Das, since deceased, entered into an agreement with the heirs and legal representatives of one Bazlur Rahaman i.e. the defendants Nos. 1 to 7 on December 2, 1962 whereby Prosanna Kumar Das agreed to purchase and the defendants Nos. 1 to 7 agreed to sell the suit properties for a consideration of Rs. 75000/- to be paid by way of exchange of his properties in Dacca described in Schedule B to the plaint. The defendant No. 2 Syed Abdur Rahaman died before the filing of the suit. But this fact was not known to the petitioners at the time of institution of the said suit. On coming to know that the defendant No. 2 Syed Abdur Rahman died on 31st December, 1967, the petitioners made an application under Order 1 Rule 10 of the Code of Civil Procedure on February 5, 1971 in the said suit for adding the heirs and legal representatives of the deceased defendant no. 2 as defendants in the suit. On the same day, i.e., 5.2.71, the defendant No. 8 filed an application alleging that the defendant No. 2 died after the institution of the suit and as the heirs and legal representatives of the deceased defendant have not been substituted within the prescribed time the suit has abated. Of course, the date of death of the defendant has not been mentioned in the said application. This application has been registered as Misc. Case No. 7 of 1971.
(3.) The petitioners filed a written objection stating inter alia that the defendant No. 2 died before the filing of the suit and as there could not be any abatement of the suit.;