1. This is a case slightly out of the ordinary as will presently appear.
2. There was a suit against the appellant (the first defendant) and others: and the suit was dismissed. Pending appeal before the Subordinate Judge, one of the defendants died. That was not noted; and in the appeal, the Subordinate Judge set aside the decision of the Munsif and sent the case back for fresh disposal. Pending the case before the Munsif after the remand, the death of the defendant was noted and that was brought to the notice of the Munsit Applications for setting aside abatement and for impleading the legal representatives were also filed before the Munsif, The Munsif. since he had no jurisdiction to implead the legal representatives, sent the case to the Subordinate Judge with a report; and after the case reached the Subordinate Judge, the plaintiff (the contesting respondent) filed applications before the Subordinate Judge for setting aside abatement and for impleading the legal representatives. And the legal representatives were impleaded. after which the case was again remand-ed to the Munsif for fresh enquiry. It is against this that the second appeal has been filed.
3. it is argued by the appellant's counsel that the procedure adopted bythe Munsif in sending a report and submitting the case to the Subordinate Judge was incorrect. On the other hand, the counsel of the contesting respondent has drawn our attention to the decision of the Calcutta High Court in Abdul Aziz v. Lakshmi Chandra Majumdar, AIR 1923 Cal 676. Almost on similar facts when a case was remanded by the High Court, the Subordinate Judge ignored the decision of the High Court holding that the decision was void since the judgment of the High Court was passed without knowing about the death of a party. And the Subordinate Judge restored his previous decision. Against that another appeal was taken before the High Court; and in the appeal the High Court observed that the proper course for the Subordinate Judge was to have sent the case to the High Court with a report and not to have ignored the decision of the High Court. The counsel of the respondent has submitted that this decision has been followed by other High Courts as well. But, we are not citing all the decisions the counsel of the respondent has collected. We shall mention only one decision, namely, Bhagwat Prasad v. Bansi Mahton, AIR 1958 Pat. 278, where a learned Judge of the Patna High Court has followed the decision of the Calcutta High Court mentioned above.
4. In this connection, the decision of our Court by Vaidialingam J. In Meenakshy Pillayathiri Amma v. Lakshmi Amma, 1967 Ker LT 777 = (AIR 1967 Ker 135) bas also been brought to our notice. The learned Judge has considered several decisions and has held that in such a case (the facts in that case were not exactly similar) the court has inherent power under Section 151 of the Code of Civil Procedure read with Order 22 thereof to implead the legal representatives so as to do justice between the parties. In the case before us, the action of the Munsif in placing the case before the Subordinate Judge with a report can also be justified under Section 151.
5. We feel that the decision of the Calcutta High Court is good authority on the question; and we follow the same.
6. The second appeal is dismissed. No costs.
7. The records will be sent back without delay.