1. The second defendant, in the first suit having died and his legal representatives not having been brought on the record within the time allowed by law, the first question is whether the suit, which was one in ejectment, abated only as against him or against the other defendants as well The language of Section 368 of the Code of Civil Procedure of 1882 is no doubt, general, but that section, has been the subject of many decisions, and we think the view taken of it in Joy Gobind Saha v. Manmatha Nath Batterji and Upendra Kumar Chakravarth v. Sham Lal Mandal I. L. R. (1907) C. 1020 is correct. No doubt, in a case like the one in Raj Chunder Sen v. Ganga Das Seal and Ramgate Dhur v. Raj Chunder Sen I. L. R. (1904) C. 487 where the suit was for taking accounts and the winding up of the affairs of a partnership, the right of action could not be said to survive against the remaining defendants partners alone, since the relief, in a suit of that nature, can Only be grafted when all the partners and their legal representatives are before the court. A suit to recover possession of land from a number of trespassers stands, however, on a different footing. The plaintiff could proceed against one or more of them as he chose. We are, therefore, of opinion that the right to sue survived against the surviving defendants so far as their interests are concerned.
2. Now so far as the present suit as against the representatives of the and defendant is concerned, the position is this. The first suit in which the 2nd defendant's representatives were not brought on record was allowed to be withdrawn with leave to institute a fresh suit. The order purports to be made with the consent of the defendants, but as a fact the 2nd defendant on the date of the order was dead, and his legal representatives had not been brought on the record and there could, therefore, be no consent on the part of his legal representatives. But that order granting leave to institute a fresh suit was not called in question by review or by revision. The question then is, was the order of no effect in law or was it one which would be operative unless set aside
3. This matter is not free from some difficulty, but on the whole we are inclined to the view that the respondents ought to have got the order set aside, and, not having done so, no objection can be taken now to the suit on the ground that the order granting leave was made on a misconception of facts or that the leave was inoperative. The court has jurisdiction to grant leave to institute a fresh suit whether the defendants consented to it or not, and apparently the court thought that it was a proper case in which leave ought to be granted. Under these circumstances we do not think that the leave can be treated as non est.
4. The appeal is allowed and we reverse the decrees of both the courts and remand the suit to the court of first instance for disposal according to law. Costs will abide the result.