Bijitendra Mohan Mitra, J. - (1.) : The instant revisional application under Article 227 of the Constitution of India is directed against the appellate order being RAL No. 30 of 1982-83 passed by the Appellate Authority being the Sub-Divisional Officer, Ghatal and has confirmed the order of the original adjudicating authority. By the impugned order the appellate authority has considered the question of a petition under Section 5 of the Limitation Act as being time-barred as the heirs of one Kanailal Jana was not brought on record in time. It has been mentioned in the impugned order that said Kanailal Jana expired on 19.8.1984 and the legal heirs should have been substituted within 90 days of his demise. It is further on record that his wife has already been brought on record and she was contesting the proceeding. The moot point which permeates the entire range of controversy is that if one of the heirs is already on record, then how far the question of abatement will arise and if not, then, whether the appellate authority is right in considering the efficacy of a petition under Section 5 of the Limitation Act as it may not have germane bearing on the controversy. At the time of the hearing of the matter, the reference was made to the provisions of the connected Act itself and, namely, the West Bengal Restroration of Alienated Land Act, 1973 and Section 8 thereof contemplates the powers of the Special Officer and it has been mentioned that the said Officer shall have the powers of a Civil Court under the Civil Procedure Code for the purpose of receiving evidence, administering oaths, enforcing the attendance of witness, the production of documents. From the cursory glance of the relevant provisions of the Act itself, it appears that there is a provision in terms of which State Government may make Rules but it is pertinent to mention that there is no specific provision of the Civil Procedure Code though there is particular mention about adaptation of some of the provisions of the Civil Procedure Code. In the light of the same, an interesting question cropped up in 1997 Calcutta Law Times that in absence of Specific provision either mentioned in the Act or in the Rules how the power would be governed in case of death of a party litigant during the pendency of the proceeding. In support of the submissions made by the petitioner, Mr. Sadananda Ganguly, the learned advocate has referred to the decision of United Bank of India v. Golam. Hussain Halder & Ors., reported in Calcutta Law Times, 1997, V-II at page 236 where it has been observed by this Court by way of pertinent observation which is quoted hereunder, 'as indicated we cannot conceive of life without death, similarly we cannot conceive of a party litigant in a pending proceeding being visited by death which must be followed by the legal eventuality of abatement. There is no other efficacious alternative via media. by way of procedural law which can regulate proceeding in case of death, marriage and insolvency of the parties other than the application under Order 22 of the Civil Procedure Code". In the context of another Act, namely, it has been opined that unless the same is allowed to be invoked, Debt Recovery Tribunal will be in a region of quandary to arrive at an adverse inference to the conduct of a party litigant for not taking steps either for condonation of delay or for non- presentation of the substitution in time. If Civil Procedure Code does not apply, then in absence of the application of the same, Limitation Act is allowed to be applied, as the only parmateria, then, longer time has to be prescribed which may not fit in with the object and purpose of the said Act. The adaptation of procedure should be in a manner so that objects of the Act may not be made a casualty at the alter of erratic procedure and speedy justice may not be thwarted while considering this statute by invoking the doctrine of mischief rule in preference to that of doctrine of golden rule with regard to the construction of statute. It becomes very difficult to specify all the eventualities and to the procedural and remedial steps to be get over such eventuality except by application of Order 22 of Civil Procedure Code which is a well-thought device adopted and tested for centuries by the legal draftsman whose wisdom is supposed to be greater than that of the modem harbinger of a natural justice. In view of the procedure is being forecast under the provisions of the Civil Procedure Code, this Court has also tends to rely on a decision of the Apex Court in the case of A.A. Khaha Moinuddin v. Indian Railways, reported in 1992 V-(4) SCC page 736 where Supreme Court has held on construction of Section 18(1) of the Railways Claims Tribunal Act, 1987 that the Claims Tribunal shall not be bound by the procedural of Civil Procedure Code but does not go so far as to say that it shall be precluded from invoking the provisions of the Code even if the same is inconsistent with the Act and the Rules. A view which advances the cause of justice must be preferred to one which defeates it. Accordingly, this Court by placement of reliance of the aforesaid decisions tend to proceed on the basis of the footing that in absence of any special provision in respect of death as contemplated under the Act and the Rules framed, thereunder, the Order 22 of the Civil Procedure Code will squarely apply. If Order 22 to the Civil Procedure Code applies, then one of the heirs of the deceased if found on records, there is no question of abatement of the pending proceeding. As such, the view taken in the impugned appellate order that the provisions of Order 22 Rule 4 read with Order 22 Rule 11 are not applicable in this case appeared to be vitiated by mis-direction in exercise of jurisdiction. Accordingly, on the face of existence of one of the successors of the deceased person on record, the Court cannot insist on the yardstick of application of Section 5 of the Limitation Act by deriving inspiration from the provision of Order 22 Rule 9, sub-rule 3 of the Civil Procedure Code. As such, it is not a question of substitution after setting aside abatement but it is a question of substitution after setting aside abatement but it is a question of simple inclusion of the other heirs on record and the approach taken in the appellate order to apply Section 5 of the Limitation Act becomes palpably misconceived. As such, the order under challenge is denuded of substance of the basic foundation and, accordingly, it is liable to be set aside in the ends of justice. There is another facet of controversy as it appears that by an earlier order dated 5th July, 1995 the revisional application stands dismissed for default. Thereafter, the application for restoration was caused to be filed which was kept pending on the record. A preliminary objection was taken by the learned advocate on behalf of the contesting respondent that the same was filed after about a lapse of seven months without any explanation of delay and the same not being accompanied by an application under Section 5 of the Limitation Act whether the same is entertainable or not. This Court while giving an anxious consideration to the preliminary objection sought to be raised by the learned advocate for the contesting respondent has pondered over the question from a different angle. It appears to this Court that if there is no time period mentioned for moving an application under Article 227 of the Constitution of India save an except that it is required to be filed by way of diligent exercise and within reasonable period. Therefore, when off-shoot arises for reconsideration of the order how far a question of Section 5 of Limitation Act will be attracted therein. This Court can refer to catena of decision starting from the landmark decision reported in AIR 1932 Calcutta page 678 where it has been held that no appeal will lie against an interim order when there is no provision for appeal against the final order. There has been lot of debate at subsequent stages about the efficacy of the said legal proposition as propounded in the aforesaid landmark decision referred to above and this Court believes that it still now holds good that if against an order impugned there is no provision for appeal no appeal will lie against the interim order awaiting passing of the final order. The said view fords its support and this Court does not intends to trace the course of evolution of the said view numerous decisions as it appears that the same seems to have been set at rest in a recent decision of our Court reported in AIR 1994 Calcutta, page 205 where a reference was kept in view of a decision reported in AIR 1994 Supreme Court page 1591 even we may not be oblivious of the existence of earlier decision in point of time reported in 24 Cal LJ 331 and 26 Cal LJ page 325. Apart from going into this question.that when limitation is not prescribed against the parent order whether law of limitation will apply with regard to an off-shoot and such parent order and the answer may be found from the aforesaid line of decisions. Even assuming though not admitting that there is possibility of tangentical view about the proposition formulated by this Court. It is well-known that under the revisional powers of this Court, High Court is competent to see that proper orders are made when a matter comes up in revision. The mere fact that an earlier order was not moved or assailed the same would not stand in the way of the High Court making order in accordance with law and in support of the same reliance may be placed in the case of Jatindra Nath Nandy v. Krishna Dhan Nandy, reported in 56 Cal WN 858 the said decision gives support even in the case of Mohendra Dutta Co. Ltd. v. Uma Chanran Law & Ors., reported in 68 Cal WN page 179 which has been subsequently followed in (1987)1 Cal LJ page 479. Accordingly, this Court feels that when an earlier order was passed dismissing an application for default without touching on merits, the Court can cure defects or material irregularity in exercise of jurisdiction and look into the order impugned and can set at right the element to jurisdictional infirmity contained in the order under challenge in the revisional application. Accordingly, the instant revisional application succeeds and the impugned order is set aside and other heirs of the deceased are brought on record irrespective of the question of technicality of purported compliance of Limitation Act and the appellate authority is directed to dispose of the connected appeal on merits at the earliest possible time.
(2.) If urgent certified copies of this order are applied for, the Office is directed to issue the same within latest by three weeks from this day. Order accordingly. ...[VERNACULAR TEXT OMITTED]...;