- (1.) THIS Rule is directed against an order dated the 30th April, 1958 by which the 10th Court of the Subordinate Judge at Alipore has added five sisters of the deceased defendant Manmatha Nath Chakravarty, as parties to the suit. The facts which are not disputed are these: the plaintiff opposite party instituted a suit upon a mortgage and the sole defendant in the suit was one Manmatha Nath Chakravarty who died unmarried on the 18th January, 1957. On the 20th February, 1957, upon the plaintiff's application two brothers of the deceased defendant named Paresh Nath Chakravarty and Kshetra Nath Chakravarty were substituted in his place as his sole heirs and legal representatives. On the 20th May, 1957, the substituted heirs entered appear-once and sometime thereafter they filed a written statement, inter alia, on the ground that the suit was bad for non joinder of necessary parties. On the 11th September, 1957, the plaintiff filed a petition for directing the substituted defendants to supply the addresses of the sisters of the deceased defendant alleging that the defendants had disclosed in their written statement that the deceased defendant had left some sisters. Upon this application, the court directed the substituted defendants to supply the particulars within a week. After some adjournments, which are not material for our present purpose, the court recorded an order on the 9th November, 1957 to the following effect: "particulars not supplied. To 15-11-57 for orders. "
(2.) ON the 15th November, 1957, the substituted defendants filed a petition stating that the question of compliance did not arise for the reason that they had not alleged the existence of any sister in their written statement. Upon that application the court vacated the order directing the substituted defendants to supply the particulars. This order of the court vacating the direction upon the substituted defendants to supply particulars was passed on the 4th December, 1957. Thereafter, on the 21st February, 1958. the plaintiff filed an application stating that the said Manmatha Nath Chakravarty had died leaving five married sisters whose names and addresses were not known to the plaintiff and the plaintiff had come to know the names and addresses only three or four days before the date of the application, and the plaintiff accordingly prayed that the said five sisters might be added as parties defendants to the suit. This petition was objected to by the defendants who had already been substituted. By the order which is impugned in this Rule, the learned Subordinate Judge overruled the objection of the substituted defendants and directed that the application for adding the five sisters be allowed upon the plaintiff paying a sum of Rs. 50/- as costs to the defendants. Against this order, the two brothers of Manmatha Nath Chakravarty who had been substituted on the 20th February, 1957 have obtained the present Rule.
(3.) MR. Majumdar appearing in support of the Rule, has argued that the order made by the learned Subordinate Judge is without jurisdiction because it takes away a valuable right which had accrued in favour of the defendants under Order 22, Rule 4 (3) of the Civil Procedure Code. His argument is that the application for substitution of only some of the heirs which had been filed by the plaintiff and granted by the Court on the 20th February, 1957 was no application for substitution within the meaning of Order 22, Rule 4 (1) of the Code of Civil Procedure and consequently the suit had abated against the deceased defendant. The learned Subordinate Judge has held that no question of abatement arises in this case as against the deceased defendant because some of his heirs have already been brought on the record and substituted in his place and he has held that the present case is not to be governed by Articles 171 and 176 of the Indian Limitation Act but the proper article applicable is Article 18! of the Limitation Act it is the propriety of this decision that is challenged by the petitioners before us. The question really is whether the application for substitution of only some of the heirs of a deceased defendant is a proper and valid application for substitution within the meaning of Order 22, rule 4 (1 ). Mr. Majumdar has relied upon the decisions in the cases of Kali Dayal Bhattacharjee v. Nagendra Nath Pakrashi (4) 24 C. W. N. 44; Manindra Chandra Nandi v. Bhagabati Devi Choudhurani (2) 30 C. W. N. 45 and Naimuddin Biswas v. Maniraddin Laskar (3) 32 C. W. N. 299 for the proposition that if an appeal abates as against the heirs of a deceased appellant who have not been substituted in the appeal, the appeal may under certain circumstances abate as a whole. None of the cases cited by Mr. Majumdar, however, deals with the question whether the substitution of some of the heirs is a valid substitution within the meaning of Order 22, Rule 4 (1) of the Code of Civil Procedure. In the case of Kali Dayal Bhattacharjee v. Nagendra Nath Pakrashi (1) 24 C. W. N. 44, the sons of a deceased respondent were substituted on a false representation that the respondent had died within six months, which was the period of limitation allowed on the date of that decision, but that order of substitution was subsequently vacated and the question was whether the appeal could proceed in the absence of the heirs of the deceased respondent. Mookerjee and Panton, JJ. held that although under Order 22, Rule 4, the appeal abated against the heirs of the deceased plaintiff only the result of such abatement was that the appeal was imperfectly constituted and in the absence of necessary parties, the court could not proceed to decide the appeal on the merits. This decision and the other decisions which have been cited by Mr. Majumdar have no bearing on the question which has arisen for our consideration in the present case.;