Modi, J - (1.) THIS is a civil regular second appeal by the plaintiff Mst. Bhanwari in suit for declaration which was decreed by the trial court but dismissed in appeal by the Civil Judge, Sojat, by his judgment and decree dated 28. 1. 1958.
(2.) THE material facts leading up to this appeal are these: According to the plaintiff, the defendant Vijailal had pledged two gold Gokhroos weighing 13-1/2 Tolas to the plaintiff for Rs. 600/- on Sawan Badi 7, Smt. 2007 corresponding to 25. 6. 1951 vide Ex. 1. On 11. 9. 1952, the other defendant Daya Shanker made a report to the police as respects these Gokhroos alleging that Vijailal had mis-appropriated them as a result of which the latter was challaned. THE police recovered the Gokhroos from the possession of the plaintiff and eventually they were put under the custody of the Court. We do not know from the present record as to what was the result of that criminal litigation. THEreafter on 17. 4. 1953 the plaintiff instituted the suit, out of which this appeal arises, against Vijailal and Daya Shanker for a declaration that he was entitled to retain possession of the Gokhroos in question till the loan advanced by her to Vijailal was repaid. On the footing that Vijailal had died sometime on or about the 14th March, 1953 after the suit had been filed, the plaintiff made an application in the trial court to the effect that the deceased's heirs, who are alleged to be his brother Doongarmal and three sons, namely, Ghisoolal, Dhanraj and Johrilal, be impleaded as his legal representatives. This application was allowed and Doongarmal, Ghisoolal, Dhanraj and Johari Lal were impleaded as defendants being legal representatives of deceased Vijailal. Out of these legal representatives, only Ghisoolal filed a written statement wherein he stated that he had no knowledge of the pledge which was alleged to have been made by his father in favour of the plaintiff. THE other defendant Daya Shanker stoutly resisted the suit. His case was that the Gokhroos which had been pledged by Vijailal to the plaintiff belonged to him and that he had pledged them with Vijailal for a sum of Rs. 400/- on a specific condition that the pledgee would have no right to sub-pledge them with any other person. His case further was that a suit for mere declaration was not maintainable. THE trial court held that the pledge relied on by the plaintiff was proved. It also held that a suit for declaration was perfectly maintainable as the Gokhroos were in the custody of the Court. It may be mentioned here that as regards the contention of defendant Daya Shanker that these Gokhroos belonged to him and that they had been pledged by him with Vijailal on a specific condition that the latter would have no right to pledge them any further, no issue or issues were raised in the trial court, and it further appears that the defence of this defendant was struck out, for certain reasons into which it is un-necessary to go for the purpose of this appeal, by the order of the trial court dated 15. 4. 1957. On the findings mentioned above, the trial court decreed the plaintiff's suit. THEreupon, defendant Daya Shanker appealed to the Civil Judge, Sojat. THE learned Civil Judge seems to have mentioned a number of points which were raised before him, in his judgment, but out of these he dealt with only two. THE first was as regards the non-maintainability of the suit for mere declaration. This point was decided by the Civil Judge in favour of the plaintiff and the suit was held to be perfectly maintainable. THE second point raised before the learned Judge was that Vijailal had actually died on 14. 3. 1953 before the plaintiff instituted the present suit. Indeed that he died on that date was stated by his legal representatives in the trial court, but it does not seem to have been appreciated that this was a date prior to the institution of the suit itself, and no one seems to have raised the point which was for the first time raised before the lower appellate court, and that point was that the entire suit must be held to have failed as it was brought against a defendant who had already died at the date of the suit. This point prevailed with the learned Judge, and consequently he allowed the appeal, and dismissed the plaintiff's suit as entirely void, having been brought against a defendant who had already died at the date of the suit. Aggrieved by this judgment, the plaintiff has come in second appeal to this Court. The principal point raised by learned counsel for plaintiff-appellant is that the learned Judge below had fallen into a grave error of law in dismissing the plaintiff's suit on the ground set out above. It is contended that fully accepting that Vijailal had died on 14. 3. 1953 before the institution of the plaintiff's suit on 7. 4. 1953, the plaintiff's suit was perfectly maintainable in the circumstances and had been rightly decreed by the trial court. On the other hand, it is contended by learned counsel for the defendant-respondent No. 2 that the suit was rightly dismissed by the learned Civil Judge, and that the procedure adopted by the trial court in allowing the legal representatives of the deceased defendant Vijailal to be substituted for him under the provisions of O. 22 of the Civil Procedure Code was entirely mis-conceived inasmuch as O. 22 could rightly come into play only when a party dies during the pendency of the suit (which expression includes an appeal and not otherwise. Learned counsel also placed strong reliance in support of his plea as to the non-maintainability of the suit on Parameswara Iyer Krishna Iyer vs. Krishna Iyer Venkitachalam Iyer and others (l ). The question to decide in these circumstances is whether the learned Civil Judge was correct in dismissing the plaintiff's suit on the ground that one of the defendants Vijai Lal was already dead at the date of the suit. Now, I may mention straightaway that on the assumption that Vijailal had died on 14. 3. 1953 (and there is no reason to doubt the statement made in this behalf by Ghisoolal and others who are his legal representatives) prior to the institution of the suit, there can be no question of his legal representatives being brought on the record under O. 22 of the Code of Civil Procedure; for, abatement occurs only where death of a party takes place during the pendency of a suit or appeal and it is only then that the provisions of O. 22 are attracted thereto. The proceedings taken in the trial court, therefore, for bringing the legal representatives of the deceased defendant on the record under O. 22 were entirely mis-conceived. That however, does not conclude the matter. For, the present was not a case where the plaintiff had brought his suit against the sole defendant who was deceased at the date of the suit and the suit had been brought against more than one defendant, one of whom only was dead at the date of the suit. In that state of circumstances, it cannot be accepted as a sound proposition of law that the suit was void ab initio inasmuch as the suit against the remaining defendant was duly brought. When the fact of death of one of the defendants in a case like the present happens to be brought to the notice of the court, the proper procedure, in my opinion, is to strike out the dead person's name and see whether the suit can proceed against the remaining defendant, and further the Court should also apply its mind to the question whether it is necessary to bring the legal representatives of the deceased defendant on the record to properly proceed with the suit, and whether this can be done by a appropriate amendment of the plaint or by recourse to the provisions contained in O. 1, r. 10 of the Civil Procedure Code. Two classes of cases might arise in this connection. One class of cases would be where the defendant who is said to have died before the institution of the suit was a mere formal party. In such a case, it may not be necessary to implead his legal representative at all and the suit can well proceed without him. Another class of cases would be where the deceased is a necessary party to the suit, and in such a case the Court may either allow an amendment to the plaint to be made so that the legal representatives of the deceased defendant are brought on the record or perhaps may pass an order that the names of such legal representatives be brought on record as provided by Sub-rule (2) of Rule 10 of Order 1. In the last mentioned class of cases, care must be taken to see that against the legal representatives are so brought on the record, the suit is not barred by limitation. In other words, a party should not be allowed to be added by way of amendment or otherwise after the period of limitation has expired against it. Reference may be made in support of the propositions enunciated above to Makram Ali Molla and others vs. Abdul Molla and others (2), Roop Chand vs. Sardar Khan (3) and Rangrao Vyankatesh Deshpande vs. Kashinath Dhondu (4 ). I am in respectful agreement with the view taken in these cases. As regards the case Parameswar Iyer Krishan Iyer vs. Krishna Iyer Venkitachalam Iyer & others (supra) relied on by the defendant-respondent, I think it sufficient to say that that case on facts affords no parallel to the case before me and, therefore, can have no application here. Therefore does not afford any correct guiding principle for the decision of a case like the present. Let us now see how the principles formulated above apply to the instant case. The plaintiff had brought the present suit against two defendants. Only one of them was dead at the date of the suit and, therefore, it cannot possibly be urged that the suit was void ah initio or that it was not duly brought against the other defendant. It also seems to me that this is not a case where the deceased defendant was a mere formal party to the suit. He was a necessary party because relief was claimed against him also. That being so, two courses seem to have been opened before the trial court; either it could have allowed the plaintiff to bring the legal representatives of the deceased defendant on the record by recourse to amendment of the plaint or it could, have invoked the provisions contained in O. 1, r. 10 of the Code of Civil Procedure and added the names of the parties who ought to have been joined in the suit as any persons whose presence before the Court was necessary in order to enable the court effectually and completely settle the dispute involved therein. Neither of these recourses was, however, adopted by the trial court, and instead recourse was taken to the provisions contained in O. 22 on the footing of abatement. This, I have already explained above, was not certainly a correct procedure to adopt because no abatement can be said to have arisen in the present case as the defendant did not die during the pendency of the suit in the trial court, but had died before the suit commenced. The fact remains, however, that, even though by a wrong process, the legal representatives of the deceased defendant were brought on the record. An application for bringing these legal representatives on the record had been made on 30. 5. 1953. This was well within the period of limitation, which is admittedly six years under Art. 120 of the Limitation Act. Much the trouble which has arisen in this case seems to have arisen because the point on which the defendant-respondent placed his reliance before the ower appellate court and which prevailed with it was not raised in the trial Court. If it had been raised in the trial court, then it would have been perfectly easy for the plaintiff to have filed an application for the amendment of the plaint, and that amendment in the circumstances could not but have been allowed, for even if the suit should have been treated as having been freshly instituted against the legal representatives of the deceased, it would have been perfectly within time. In this state of circumstances, I have no manner of hesitation in coming to the conclusion that the learned Civil Judge fell into error when he threw out the plaintiff's suit on the ground that it had been filed against a dead person. The correct conclusion to come to is that the suit was validly brought in the first instance so far as the defendant Daya Shanker was concerned, and that so far as the other defendant Vijailal goes it was not properly brought; but, as his legal representatives were brought on the record within the normal period of limitation applicable to such a case, the suit was still a good one even if it was treated as respects this as a fresh suit brought at the date of the application when they were sought to be impleaded as the legal representatives of the deceased. For the reasons mentioned above, my conclusion is that the judgment of the learned Civil Judge cannot possibly be sustained and must be set aside. It appears from the judgment of the learned Civil Judge that as he had come to a conclusion in favour of the defendant-respondent on the point discussed above, he did not apply his mind to some other contentions raised on his behalf before him or give his findings on them. That being so, the case will go back to him for a fresh decision on the merits apart ofcourse from the points which have already been decided. The result is that I allow this appeal, set aside the judgment and decree of the learned Civil Judge and remand the case back to him for a fresh decision on the merits in the light of the observations made above. The plaintiff will have his costs of this appeal. .;