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Civil Rule No. 52 (S) of 1951, decided on 16th March 1953.

O. XXII, r. 4‑Some of deceased respondent's heirs already on record‑Appeal may yet abate if others are not brought on record‑Abatement cannot be avoided by invoking r. 10 of O. I, Civil P. C.

An appeal does not abate by the death‑of the respondent, if the right to sue survives against him; it abates only, if the legal representatives are not substituted within the prescribed time. The question of substitution does not arise if all the legal representatives of the deceased respon dents are already on record ; all that is necessary in such a case is to make an entry to that effect. The question of substitution arises in the two cases mentioned in rule 4. One is where the sole respondent dies and the right to sue survives and the other is where one of two or more respondents dies and the right to sue does not survive against the surviving respondent or respondents alone, i.e., survives against them and others who are not on record. This rule shows that the appeal shall abate if the others, who are not on record, are not substituted. There is no warrant for the argument that if some of the deceased respondents' heirs are on record, the appeal does not abate.

A suit cannot abate against a deceased defendant in part; if it abates against him, it abates as a whole.

Abatement in this case, however, was sought to be avoided by invoking rule 10 of Order I Civil P. C. read with section 141 Civil P. C.

Held, that it is well‑settled that the effect of section 141 is that the procedure in regard to suits can be extended only to proceedings of original nature.

Rule 10 of Order I, Civil P. C. was therefore inapplicable.

Ghamandi Lal v. Amir Begam I L R 16 All. 211, Haidar Hussain and others v. Abdul Ahad and another I L R 30 All. 117 and Fajor Banu and others v. Rohim Bux Bhuiya and others 32 C W N 1020 rel.

Sadhu Saran Pandey v. Nand Kumar Singh and others A I R 1926 Pat. 276, Ishwarlal Laxmichand v. Kuber Mohan and another, I L R 1943 Bom. 575 and Muhammad Ata Husain Khan and others v. Husain Ali Khan and others A I R 1944 Oudh 1939 dissented from.

M. H. Khondkar for Petitioners.

A. C. Bhattacharyya for Opposite Parties.

B. N. Roy Choudhury for the Deputy Registrar for minor Opposite‑Parties.

‑The petitioners are the appellants in Second Appeal No. 1778 of 1944 which has arisen out of a suit for eviction instituted by the respondents after redemption of a usufructuary mortgage, under section 26G of the Bengal Tenancy Act. The petitioners took a lease from the mortgage and were recorded in the record‑of‑rights as under raiyat having right of occupancy. Their defence is that the lease is binding on the respondents. The contention was overruled and the suit was decreed by the trial Court on the 8th of March 1943. The appeal to the lower appellate Court was dismissed on the 31st of May 1944, and the second appeal was preferred on the 21st of August 1944. On the 27th of December 1950, the petitioners came to know from their learned Advocate that a notice was given by the learned Advocate for the respondents, that respondents Nos. 15 (Safuran), 16 (Gafuran) and 18 (Nursan) had died long before. This Rule was thereafter obtained on the 11th of January 1951, for setting aside abatement and for substitution of the heirs of the said deceased respondents.

As regards Nursan, the learned Advocate for the petitioners has accepted the statement of the opposite‑parties that she made a gift of her interest to respondents Nos. 12 to 14 and 17 before her death in 1948. So far as she is concerned, no question of setting aside abatement and substitution arises. The law applicable is rule 10 of Order XXII of the Code of Civil Procedure, which lays down the procedure in case of an assignment during the pendency of a suit. As the transferees are already on record, the appeal can be prosecuted against them.

Gafuran died, according to the petitioners, in April 1949, but according to the opposite parties, in July or August 1946, leav ing five heirs, including her husband Kasiruddin Kazi. The other four heirs are respondents Nos. 12 to 14 and 17. The petitioners want to bring Kasiruddin on record, the other four being already there. The petition was filed long after the expiry of limitation, whether she died in April 1949, as alleged by them or in July or August 1946, as alleged by the opposite parties. The petitioners affirm that they had no knowledge of her death until the 27th of December, 1950, when their learned Advocate informed them of the notice served upon him. This affirmation is contested. It is alleged by the opposite parties that both Gafuran and Safuran died at Moria which is only half a mile away from the house of the petitioners. The petitioners, of course, dispute this and say that they died at the respective residences of their husbands about 7 miles away. As between the two counter‑affidavits it is difficult to prefer that of the petitioners. Some of the statements made in their affidavit have been subsequently admitted to be incorrect; .for instance, the statements about the successors of Nursan and Safuran. Though the petitioners alleged that Danes, Loyjan and Gafuran were the successors- in‑interest of Nursan, their learned Advocate has ultimately accepted the statements of the opposite parties that she had gifted away her interest to respondents Nos. 12 to 14 and 17. Again the persons mentioned as the successors‑in‑interest of Safuran have been admitted to be not so in the affidavit in reply. Incorrect statements of this nature may sometimes be due to bona fide mistake ; but the damaging thing in this case is that these statements, which have been subsequently admitted to be incorrect, were affirmed as being true to the knowledge of the deponent. A person, who affirms fabrication or hearsays as facts true to his knowledge, is, to say the least, too irresponsible to be trusted in a Court of law. There is thus no basis on which it can be found that the application is not too remote from the date of the petitioners' knowledge.

Mr. M. H. Khondkar, when faced with the question of limitation, argued that there was no abatement in con sequence of the death of Gafuran, as several of her heirs, namely, respondents Nos. 12 to 14 and 17, were already on record. He has relied on Sadhu Saran Pandey v. Nand Kumar Singh and others (A I R 1926 Pat. 276), Ishwarlal Laxmzchand v. Kuber Mohan and another (I L R 1943 Bom. 575) and Muhammad Ata Husain Khan and others v. Husain Ali Khan and others (A I R 1944 Oudh 139). The last mentioned case is directly to the point. There it has been held that if one of the heirs of a deceased respondent is on record, the appeal does not abate, either as a whole or in part. The first case lays down the principle that if one of the heirs of a deceased respondent is brought on record, the appeal does not abate. The second case has decided that an appeal does not abate, if one of the two heirs of a plaintiff appellant is brought on record. These cases, therefore, lend support to the contention of Mr. Khondkar that if some of the heirs of a deceased respondent are on record, the appeal does not abate by reason of the fact that the others have not been substituted.

Mr. A. C. Bhattacharjee for the opposite parties, referred to Ghamandi Lal v. Amir Begam (I L R 16 All. 211), Haidar Hussain and others v. Abdul Ahad and another (I L R 30 All. 117) and Fajor Banu and others v. Rohim Bux Bhuiya and others (32 C W N 1020). The first case has decided that if, on the death of the sole appellant, one of his heirs is brought' on record, that does not prevent abatement. The second case enunciates the same principle. In the third case Page and Mullik JJ. Said

"In our opinion, 'legal representative' in Order XXII, Rule 3 means the legal representative or representatives of the deceased plaintiff, or all the representatives of whom the representative applying knew or ought to have known. [Ghamandi Lal v. Amir Begum and Haidar Hussain v. Abdul Ahad]. It well may be that if one or more of the legal representatives are unknown or all unwilling to join in the application under Order XXII, rule 3, different consideration will arise and that a bona fide application by all the representatives who are willing to join in making the application will be a sufficient compliance with Order XXII, rule 3 [Bhikaji Ram Chandra v. Purshottam (I L R 10 Bom. 220), Musala Reddi v. Ramayya (I L R 23 Mad. 125) and Abdul Rahman v. Shahab uddin (I L R I Lah. 481.)]".

An appeal does not abate by the death of the respondent, if the right to sue survives against him ; it abates only, if the legal representatives are not substituted within the prescribed time. The question of substitution does not arise if all the legal representatives of the deceased respondents are already on record ; all that is necessary in such a case is to make an entry to that effect. The question of substitution arises in the two cases mentioned in rule 4. One is where the sole g respondent dies and the right to sue survives and the other is where one of two or more respondents dies and the right to sue does not survive against the surviving respondent or respondents alone, i e., survives against them and others who are not on record. This rule clearly means that the appeal shall abate, if the others, who are not on record, are not substituted. I do not see how it can be argued that if some of the deceased respondents' heirs are on record, the appeal does not abate.

The question of abatement in part cannot, to my mind, arise at all. Sub‑rule (3) of rule 4 states:

"Where within the time limited by law no application is made under sub-rule (I), the suit shall abate as against the deceased defendant".

A suit cannot abate against a deceased defendant in part if it abates against him, it abates as a whole. There may indeed be cases where, even in spite of his best attempts; the appellant is unable to discover correctly all the legal representatives of a deceased respondent. But the rule, as worded, does not make any exception for such a case.

It is, however, not necessary for me to go to that length ; for that question does not arise for decision in this rule. Mr. Khondkar's argument that there was no abatement and that consequently the parties are not hampered by any question of limitation, fails, so far as Gafuran is concerned.

Safuran died, leaving two sons and one daughter. These persons are not named in the petition and no rule was obtained against them. After the counter‑affidavit, an application was filed but long after the period of limitation and was rejected. But the petitioners filed another application for amendment of the petition by substituting the heirs in place of those who were wrongly mentioned as the legal representatives. It is obvious that the rule, so far as they are concerned, must be discharged unless the prayer for amendment succeeds. The petition for amendment was filed in November 1952, i.e., long after three months from the 27th of December 1950, when the notice of death was given to the petitioners. Fayezuddin Pramanik, the deponent in the counter‑affidavit, is the brother of Safuran, and he has affirmed that Safuran died at his house at Moria, only half a mile away from the petitioner's house. Unless the petitioners get an extension under section 5 of the Limitation Act, they cannot succeed, so far as her heirs are concerned, whether their affidavit in reply is treated as a petition for a rule upon them or a petition for amendment of the petition on which the rule was obtained. But negligence or careless ness can never be a sufficient cause for extension of the period and all that the facts show is that the petitioners were negligent or careless. No case for extension has therefore been made out.

Mr. Khondker has invoked the aid of rule 10 of Order I of the Code of Civil Procedure. This rule is applicable to suits. But his argument is that, read with section 141, it is applicable to an application for setting aside an abatement. It is well‑settled that the effect of section 141 is that the' procedure in regard to suits can be extended only to pro ceedings of original nature. Conceding, however, that rule 10 is applicable to an application for setting aside abatement and substitution, it is of no use to the petitioners in this case inasmuch as this rule does 'not override the law of limitation; and that is distinctly stated in sub‑rule (5) thereof. A party cannot be added by way of amendment after the period of limitation which in this case already expired when the petition for amendment, i.e., the affidavit in reply, was filed. It appears to me, further, that this rule does not authorise the replacement of an entire set of defendants or opposite parties by a new set of defendants or opposite parties.

In the result, the rule fails and is discharged, so far as the deceased respondents Nos. 15 and 16 are concerned. As regards respondent No. 18, a note may be made in the Memorandum of Appeal that respondents Nos. 12 to 14 and 17 are the transferees of respondent No. 18.

The prayer for amendment is rejected.

A. H. Rule discharged.

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