S. Barman, J.
1. Defendant No. 1 is the petitioner in this Civil Revision directed, against an order of the learned Munsif Barharh, whereby he allowed the plain-tiff's application for reopening and re-hearing of the suit, after bringing on record the legal representatives of the deceased defendant No. 3 in the suit, on the facts and in the circumstances hereinafter stated.
2. The plaintiff filed a suit for partition being Title Suit No. 23 of 1956. The plaintiff is the widow of the first brother of a family consisting of the plaintiff's husband and three other brothers. The said three other brothers were made defendants in the suit. On September 19, 1957 a preliminary decree was passed in the said partition suit. On March 13, 1958 the plaintiff filed an application for final decree, on notice to all the defendants. On March 28, 1959, the peon's report revealed that defendant No. 3 had died on September 16, 1956, that is to say, about a year before the preliminary decree was passed on September 19, 1957 as aforesaid.
On April 16, 1959 the plaintiff filed an application for substitution. On September 8, 1959 the plaintiff's application for final decree was dismissed on the ground that the preliminary decree,--having been passed against defendant No. 3 who was dead at the time of the preliminary decree was passed.--was void and accordingly, no final decree could be passed. On October 20, 1959, the plaintiff made another application for reopening and rehearing of the suit after bringing, on record in the suit, the legal representatives of the deceased defendant as aforesaid. The said application was allowed. Hence this Civil Revision.
3. Mr. S.K. Ray, learned counsel for the defendant petitioner contended that, in the circumstances hereinbefore stated, the entire suit had abated and there was no application for setting aside abatement; that no opportunity was given to the legal representatives of the defendant to contest the application of the plaintiff to sue in forma pauperis. The main point of Mr. S.K. Ray is that there is no sufficient cause for delay in making the application for substitution which the plaintiff filed on April 16. 1959. He also commented on the aspect that after the plaintiffs' application for substitution had been dismissed, no Civil Revision was filed from the said order; he further submitted that the earlier application made on April 16, 1959 for substitution is to be treated as an application for setting aside abatement, and according to him the order made on September 8, 1959 was made both on the plaintiffs application for substitution as also on his application for final decree whereby,--as the petitioner's case is,--the trial Court dismissed both the petitions of the plaintiff.
This argument, however, overlooks the position that the order made on September 8, 1959--which is Order No. 12 of the Order-sheet of the trial Court.,--was made on the application of the plaintiff to make the preliminary decree final which was rejected by the trial court; in the said order there does not appear to be any alleged order of dismissal of the plaintiff's application for substitution made on April 16, 1959; and SO the matter was kept open.
4. On the petitioner's main point--that no application for setting aside abatement having been made the entire suit had abated,--Mr. A.B. Ray, learned counsel for the plaintiff opposite party, submitted that an application for substitution without prayer for setting aside abatement is maintainable. In support of his proposition he relied on certain decisions holding that an application made to bring the legal representatives of the deceased defendant on record after the time prescribed therefor by law, should ordinarily be treated as an application to set aside the abatement of the suit which has taken place, though it is not asserted, that the delay was due to reasonable causes, and on proof of sufficient cause for delay the application should be granted; in case, where such an application is made after the death of a deceased party to bring his legal representatives on the record and continue the proceedings, the application is in substance an application to set aside the abatement under Order 22, Rule 9 Civil Procedure Code and that the absence of a formal order of abatement is no obstacle thereto; that the court has power to entertain such an application and decide whether the applicant was prevented by sufficient cause from continuing the proceeding, under Order 22, Rule 9, Sub-rule (2) independently of sub-rule (3) Kripa Ram v. Bhagat Chand, AIR 1928 Lah 746; Lachmd Narain v. Muhammad Yusuf AIR 1920 All 284.
5. Then, on the point whether there was sufficient cause for delay, it is a question of fact; setting aside abatement is in the discretion of the trial Court and it should not ordinarily as in the present case, be interfered with; that apart, in the present case, the legal representatives of the deceased defendant No. 3 have not appeared to contest their substitution in the suit.
6. aS regards the petitioner's point that the legal representatives of the defendant no. 3 did not get an opportunity to contest the plaintiffs' application to sue in forma pauperis--in support of which the petitioner relied on the provisions of Order 33, Rules 5 (c) and 6 of Civil Procedure Code,--I am of opinion that this point has no substance, particularly in view of the position that the legal representatives of the deceased defendant do not appear to be taking any interest herein in that they did not even appear to contest the substitution application as aforesaid.
7. In this view of the matter, the decision of the trial Court is upheld. The revision is, accordingly, dismissed with costs. Hearing fee Rs. 50/- (Fifty rupees).