1. This is an application for revision directed against two orders passed by the Subordinate Judge of Cawnpore in a suit pending before him and brought by the plaintiff applicant. The suit was brought for enforcement of a mortgage, executed by the 1st defendant, in favour of the plaintiff-applicant on 16th May 1914. Part of the mortgaged property was subsequently sold to Mt. Brij Rani, who died sometime before the institution of the suit. In ignorance of that fact the plaintiff-applicant impleaded the original mortgagor, his son and his assignee in respect of part of the mortgaged property, namely, Mt. Brij Rani. It was subsequently discovered that Mt. Brij Rani had died before the institution of the suit. The plaintiff then applied for removal of the name of Mt. Brij Rani from the array of parties and substituting therefor the names of her two sons, The learned Subordinate Judge dismissed this application by an order of 8th August 1932, holding that the suit had been instituted against a dead person and was therefore, no suit in law. He also held that, in so far as Mt. Brij Rani had died before the institution of the suit, no question of substitution could arise. In our opinion he failed to consider the substance of the application presented by the plaintiff. It is possible that the plaintiff himself misdescribed the nature of his application; but there can be no doubt that his prayer was that Mt. Brij Rani, having died before the institution of the suit could not be a party to the suit and that her two sons, on whom her interest had devolved, might be impleaded as defendants, not as legal representatives of Mt. Brij Rani but as parties impleaded in their own rights. The learned Subordinate Judge so far granted the application as to order that the name of Mt. Brij Rani be removed from the array of the parties. Subsequently the plaintiff made another application praying that her two sons be impleaded as defendants. This application purported to have been made under Order 1, Rule 10, Civil P.C. The learned Subordinate Judge dismissed it on the ground that it was identical with the previous application disposed of by him. The plaintiff has moved this Court in revision on the question of the propriety of the two orders passed by the learned Subordinate Judge above referred to.
2. There can be no doubt that Mt. Brij Rani, who was not alive at the date of the suit, could not, in law, be impleaded as a party. It is a well-established proposition that no suit can be instituted against a dead person. Though on the face of the plaint her name figured in the array of the parties, it should be considered that in law no suit had been instituted against her. The plaintiff's application praying for the names of her sons, who were her legal representatives, being brought on the record, whatever may be the description thereof given by the plaintiff, was, in substance, an application for addition of her two sons as parties under Order 1, Rule 10, Civil P.C. The learned Subordinate Judge has referred to a number of decided cases in which it was held that a suit filed against a dead person could not be considered to have been validly instituted. It should be noticed that in all those cases there was only one defendant shown in the array of parties, though he had previously died. The suits were not considered to have been validly instituted against any living person. In that view, the Court could not act under Order 1, Rule 10, inasmuch as there was no validly instituted suit before it. In the case before us the position is materially different. The original mortgagor and his son had been impleaded and were alive at the date of the suit. It may be that though Mt. Brij Rani's name appeared in the array of parties the suit cannot be considered to have been instituted against her; but it is impossible to hold that there was no validly instituted suit against anyone, as was the case in the rulings to which reference has been made by the learned Subordinate Judge. This being so, the learned Judge could exercise all the powers which the Civil Procedure Code confers on him as regards addition of parties and amendment of the plaint.
3. The learned advocate for the opposite party has strongly pressed before us the contention that the learned Subordinate Judge might have proceeded on an erroneous view of law, but his order cannot be questioned in revision, as no question of jurisdiction was involved in the disposal of the two applications made to him. We do not think that this contention is well founded, The learned Subordinate Judge has proceeded on the assumption that a Court has no jurisdiction to order addition of parties to a suit in which one of the defendants died before the institution of the suit. He has referred to several cases in which the word 'jurisdiction' was made use of in relation to the Court's power to impleaded parties after the discovery that the original sole defendant had died before the institution of the suit. Having carefully considered the order of the learned Subordinate Judge we are convinced that he was of opinion that he had no jurisdiction to proceed under Order 1, Rule 10, Civil P.C. in view of the circumstance that one of the defendants had died |before the institution of the suit and that as against her the suit should be considered to be one against a dead person. In this revision we hold that the learned Subordinate Judge failed to exercise a jurisdiction vested in him by law. There can be no question that the trial Court has ample jurisdiction to order addition of parties under Order 1, Rule 10, Civil P.C. It is difficult for us to say whether the learned Subordinate Judge would have exercised his discretion for or against the plaintiff in case he had held that he had jurisdiction to proceed under Order 1, Rule 10. We think that we are at liberty to arrive at our own conclusion on that part of the case. We think that, in the circumstances of the case, it is just and proper that the two sons of Mt. Brij Rani should be brought on the record without any prejudice to these defendants or any other defendant taking a plea of limitation.
4. Another ground on which the learned advocate for the opposite party has objected to this revision being entertained is that the lower Court has not decided, any 'case.' It has been held by more than one Bench of this Court that, where the order sought to be revised marked the termination of a definite state of a proceeding in a suit, a 'case' should be deemed to have been decided so as to attract the application of Section 115, Civil P.C. For the reasons stated above, we allow this revision, set aside the orders of the lower Court dated 8th August 1932 and 10th January 1933, and direct that the two sons of Mt. Brij Rani be impleaded as defendants, as prayed by the plaintiff-applicant in his application, dated 10th August 1932. The applicant shall have his costs of this revision from the opposite party.