P.C.MALLICK, J. - (1.) THERE are two applications before me one by the plaintiff for withdrawal of the suit and for discharge of the Receiver, the other by the legal representative of the deceased defendant Rabindra Nath Coomar inter alia for setting aside the abatement and for substitution.
(2.) THE suit was instituted by the plaintiff for partition. The joint family estate consists of various properties including extensive paddy lands in the village of Hatni in the District of Hooghly. After the institution of the suit, the Official Receiver was appointed Receiver of about 4000 maunds of paddv amongst other properties. Except Charubala all the other defendants have entered appearance and filed their respective written statements. Thesuit, I understand, is now ready for hearing and is appearing in the Prospective List. On Apiil 2, 1959 Charubala died. Charubala is the mother of Rabindra and Ratindra the defendants Nos. 1 and 2. She has also several daughters. It is alleged that Charubala left a will whereby she appointed Hatindra as her executor. The will, however, has not been probated as yet. About a week after the death of Charubala Rabindra died intestate leaving him surviving his widow and several sons and daughters. No substitution of the heirs of either Charubala or of Rabindra was made within the 90 days provided by law and in July the suit abated as against Charubala and Rabindra.
(3.) ON July 20, 1959 the plaintiff took out a notice of motion asking leave to withdraw the suit and praying that the Official Receiver be discharged from further acting as Receiver. This application is being supported by the defendants Nos. 4 to 12 and is being opposed by the defendant No. 2, the other defendants, namely, Rabindra and Charubala having already died. Thereupon the heirs and legal representatives of the defendant Rabindra took Out a summons asking that the abatement of the suit be set aside, that the death of the defendants Charubala and Rabindra be recorded and that the applicants be substituted as heirs and legal representatives of Rabindra. These are the two applications now before me and this judgment disposes of both the applications.;