Salil Kumar Datta, J.
1. This Rule is directed against an Order No. 87 dated 11-2-1971 passed by the learned Subordinate Judge. Fourth Court Alipore dismissing the application of the petitioner defendant No. 2 dated 29-11-1969. The facts of the case are as follows:--
The plaintiff, Union of India instituted a suit on 21-7-1964 being title suit No. 68 of 1964. renumbered Title Suit No. 78 of 1968 on the allegation that the defendant No. 1 Sk. Munna Mia, a businessman, was found liable on account of income-tax for over Rs. 3.26 lakhs for the assessment years 1946-1947 to 1949-1950. On account of non-payment, four certificate cases were initiated and during the pendency of the certificate proceedings, the defendant No. 1. to defraud the Government of its said dues, transferred by several documents various immoveable properties to a private company, the defendant No. 2, the petitioner before us. This company was formed with his family members, the consideration of the transfers being shares in the said company gifted by the defendant No. 1 to them. The plaintiff accordingly prayed for declaration that the said documents mentioned in the plaint were sham, fraudulent, benami and ineffective in law and the properties therein were liable to be sold in execution of the certificates.
2-3. The defendant No. 2 on service of summons entered appearance and filed its written statement denying that the transfers were sham, fraudulent, benami and ineffective in law. It was stated that the transfers were legal, valid and for consideration and the properties so transferred were not liable to be sold in execution of the certificates.
4. In spite of several attempts, summons of the suit could not be served on the defendant No. 1 but curiously enough the suit was placed on board for peremptory hearing and was ultimately fixed on 1-11-1968 for hearing. On the preceding day i.e. on 31-10-1968 the defendant No. 2 by a petition informed the court that the defendant No. 1 died on 17-12-1967 and accordingly adjournment of hearing of the suit was prayed for,
5. Copy of this application was served on the plaintiff on 8-11-1968 and the plaintiff on the same day filed an application asking for direction on the defendant No. 2 to disclose the names of the heirs of the defendant No. 1 so that it could submit such names of the heirs for their substitution. By order dated 24-2-1969, the court directed the defendant No. 2 to disclose the names of the heirs. On 7-3-1969 the defendant No. 2 filed the petition for keeping in abeyance the said order and also for recording a formal order of abatement. On the said petition, on 3-4-1969. the court passed the following order:--
'As the defendant No. 1 has died on 17-12-1967. the suit do abate............'
6. On 3-4-1969, the plaintiff filed a petition under Order 22, Rules 4 and 9 and Section 151 of the Code of Civil Procedure, in continuation of its earlier petition, for setting aside abatement and for substitution of one Sk. Abbasuddin. a son of Defendant No. 1, the only heir the plaintiff stated it could find out after diligent enquiry, as the defendant No. 2 did not supply any names. On 30-4-1969, a similar application for substitution of Sk. Abbasuddin was filed by the plaintiff. On the said petition. Misc. Case No. 32 of 1969 was registered. This application was opposed by the defendant No. 2 who filed a written objection on 28-8-1969. It was contended therein that the suit could not proceed without the heirs of defendant No. 1. so that in absence of his substitution the suit abated as a whole. The legal effect was, it was contended, the abatement of the suit against the defendant No. 1 and the dismissal of suit against the defendant No. 2, On 29-11-1969. the defendant No. 2 filed another petition stating again that the legal effect of order dated 3-4-1969 was that the suit abated against the defendant No. 1 and was dismissed against the defendant No. 2. It accordingly prayed for an order directing that the suit stood dismissed against the defendant No. 2 with effect from 3-4-1969.
7. The Misc. Case was heard on evidence when the plaintiff produced one witness in support of its case. After hearing the parties the Court by order dated 20-2-1970 held that the plaintiff was prevented by sufficient cause from making a prayer for substitution in time. The Misc. Case was allowed on contest and the abatement as against defendant No. 1 was set aside. The court directed the plaintiff to take step for substitution of the defendant No. 1 overlooking that the plaintiff had earlier prayed for substitution of Sk. Abbasuddin on earlier occasions as stated above. The plaintiff thereafter filed an application on 6-3-1970 for a direction on the defendant No. 2 to disclose the names of the heirs of the deceased defendant No. 1 and also praying for substitution of Sk. Abbasuddin traced so far as his heir. On 18-11-1970 the defendant No. 2 filed an application praying for postponement of direction on it for disclosing the names of the heirs of the deceased defendant No. 1 before its petition of 29-11-1969 was disposed of.
8. By Order No. 87 dated 11-2-1971. the Court rejected the said application and it was observed inter alia:
'...............if within time allowed by law no application is made under Sub-rule (Rule 4), the suit shall abate against the deceased defendant. In absence of the defendant No. 1. the suit could not proceed at all. Hence the entire suit abated. It cannot be said that the order of abatement should be treated as an order of dismissal as against the defendant No. 2. In this suit the plaintiff challenges the transfers made by the defendant No. 1 in favour of defendant No. 2. There has been an allegation of fraud. I am unable to hold that in absence of legal representative of defendant No. 1 the suit can proceed against the defendant No. 2. It should be presumed that the order of abatement as against the defendant No. 1 was as a matter of fact an order of abatement against the defendant No. 2. The plaintiff's right to proceed with the suit as against the defendant No. 2 was suspended till the abatement was set aside. As soon as the abatement has been set aside the plaintiff has right to proceed with the suit against the legal representatives of the defendant No. 1 and also against the defendant No. 2. In these circumstances the petition of the defendant No. 2 is without any substance. Ordered that the petition of the defendant No. 2 dated 29-11-1969 be dismissed on contest with cost. The defendant No. 2 is directed to disclose the names of the heirs of deceased defendant No. 1 by 6-3-1971. Sk. Abbasuddin as mentioned in the plaintiff's application dated 6-3-1970 be substituted in place of the deceased defendant No. 1. Amend the plaint and register ............'.'
The present rule, as we have already stated, is against this order.
9. Mr. Manindra Nath Ghosh, the learned Advocate for the petitioner, contends that the order of 3-4-1969 to the effect that 'the suit do abate' meant the dismissal of the suit against the defendant No. 2 by reason of the abatement thereof against the defendant No. 1. Though the words 'abatement of the suit' have often been loosely used they have meant consistently in all judicial decisions, as in common parlance, a dismissal of the suit against the surviving defendants. Reliance was placed on the decisions in Lilawati Bai v. Gangadhar. AIR 1953 Nag 12 and Ananga Bhushan v. Uchhab Sahu, AIR 1955 Orissa 179. On the death of a party in either of the cases it was held in the facts of the cases that the appeals abated as a whole. The order of dismissal in the present case not having been set aside the court erred in holding that by setting aside abatement of the suit against the defendant No. 1 and substitution of his heir, there was also a restoration of the suit against the defendant No. 2. The order setting aside abatement did not, as it could not. set aside the order of dismissal of the suit against the defendant No. 2 and accordingly the court's direction on the defendant No. 2 to disclose the names of the heirs of the defendant No. 1 was without jurisdiction.
10. Mr. Balai Lal Pal, the learned Advocate for the plaintiff opposite party, has disputed the above contention and contends that the court on facts found that there was sufficient cause on the part of the plaintiff for not applying for substitution in time. This Order No. 73 dated 20-2-1970 setting aside abatement became final and binding as it was not assailed and could not be challenged in revision as was held in Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee. : 3SCR495 , while no appeal lay against such order. After this order was passed, under Rule 9, Order 22. the court was required to proceed with the suit against the substituted heir of defendant No. 1 and also defendant No. 2. Further the order regarding abatement did not either expressly or impliedly mean a dismissal of the suit against the defendant No. 2.
11. It is obvious that the order that could be passed in the event of death of one of the defendants was one under Order 22, Rule 4. The Rule inter alia provides that in cases where there are more than one defendant and the right to sue does not survive against the surviving defendants alone, if no application for making the legal representatives a party to the suit is made in time, the court shall record that the suit shall abate against the deceased defendant. There can be no abatement of a suit under this rule against an existing defendant and order of abatement of the suit can only be passed against a deceased defendant under the said rule. Accordingly the order of abatement of the suit that was passed in the present case was and could be only against the deceased defendant No. 1 but there could be no order of abatement of the suit against the defendant No. 2 which is an existing company. After the abatement of the suit against a deceased defendant is recorded the court will have to consider the position if the reliefs prayed for in the suit could be granted either wholly or partly against the other defendants in absence of the heirs of the deceased defendant who have not been made parties to the suit. If the reliefs claimed in the suit or any of them cannot be granted in their absence for some reason or other, the court will hold that the suit is incompetent and pass an order of dismissal of the suit against the surviving defendants. Such order must be an express or appropriate order of dismissal and cannot be inferred from an order merely recording abatement of the suit which in law necessarily refers to the deceased defendant. In the present case there is nothing in the order recording abatement that the court considered the position of the suit after this abatement against the defendant No. 1 and accordingly it cannot be said that there was an order of dismissal of the suit against the defendant No. 2 by merely recording an abatement of the suit.
12. Mr. Ghosh's contention is also that the word 'abatement' is often loosely used by courts and in common parlance it would mean dismissal of the suit as held in the Nagpur and Orissa cases referred to above. In the Nagpur case cited above, the court was considering if in spite of abatement of an appeal against one of the appellants, the other appellants could proceed with the appeal under provisions of Rule 4 of Order 41 as contended. While negativing the said contention, the court also laid down the principle that if a decree cannot be passed without interfering with the interest of others or if the decree to be passed is inexecutable by reason of the fact that decree in favour of the deceased respondent has become final as a consequence of partial abatement, the suit or appeal as the case may be, will abate as a whole. It may also be noted that on the facts the Orissa High Court came to the express finding that it could not proceed with the appeal in view of the partial abatement caused by the death of one of the respondents and accordingly recorded that the appeal as a whole abated. In the case of the State of Punjab v. Nathu Ram, : 2SCR636 , the Supreme Court observed:
'............when Order 22. Rule 4 does not provide for the abatement of appeals against the co-respondents of the deceased respondent there can be no question of abatement of appeals against them. To say that the appeals against them abated in certain circumstances is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of relief sought in the appeal.'
In Union of India v. Shree Ram Bohra. : 2SCR830 it was observed that in case of a joint and indivisible decree in favour of the two plaintiffs respondents, when one plaintiff died and his legal representatives are not impleaded in time the appeal against them abates and the appeal against the other plaintiff cannot be proceeded with and becomes incompetent.
13. On the same principle which also applies to this suit it cannot be said by merely recording abatement of the suit under Order 22, Rule 4 the court also ordered the dismissal of the suit against the other defendant. Even if in some cases the words 'abatement of the suit' are used, it cannot be said that the court also intended thereby the dismissal of the suit against the surviving defendant in absence of any discussion showing consideration of the position of the suit consequent on the non-substitution of the legal representatives of the deceased defendant in time. We are, therefore, unable to agree that the court intended to pass or did pass an order of dismissal of the suit against the defendant No. 2 or that such was the legal effect of the order regarding abatement. It may be noted that in appropriate cases after abatement is recorded, when the court is of opinion that the suit or appeal has become incompetent against other parties as a result whereof the suit or appeal fails, the court may pass an order of its dismissal. When in such cases the abatement against the deceased party is set aside the court may have also to pass an order restoring the suit against the surviving defendants or respondents after setting aside the order of dismissal of the suit or appeal, may be under Section 151. That situation, as we have already noticed, did not arise in this case in absence of any order of dismissal of the suit against the defendant No. 2. In absence of any express or implied order of dismissal or any finding about the incompetence of the suit on a consideration of the defect of parties following its abatement against the defendant No. 1. we are unable to hold that the court intended or even meant impliedly or expressly a dismissal of the suit itself against the defendant No. 2 which has thus been pending all through in respect of the said defendant. For the above reasons the order impugned in this rule has to be upheld.
14. In passing we must also observe that we do not subscribe to the observation of the learned Judge that the order of abatement against defendant No. 1 is also to be presumed against the defendant No. 2 or that the right of the plaintiff to proceed with the suit against the defendant No. 2 was suspended till abatement was set aside. The position seems to be that on the death of the party the law allows a time limit of 90 days for making an application for substitution and during this period it would be improper for the court to pass any order decreeing or dismissing the suit as was observed in Md. Ali v. Allaha Ditta, AIR 1931 Lah 73. It was observed in that case that during this period the suit is in a state of suspense when no order except merely formal or procedural order can be passed in the suit and that the state of suspense by lapse of time merges into abatement after the expiry of the time prescribed. That however does not mean that the plaintiff's right to proceed with the suit against the defendant No. 2 is suspended till the abatement of the suit against the defendant No. 1 is set aside and after the abatement is set aside the plaintiff's right to proceed with against the heirs of the defendant No. 1 as also the defendant No. 2 comes into life. This proposition is, as we have seen, untenable in law.
15. Mr. Pal lastly made another contention that the present application in revision is not maintainable as the High Court's power under Section 115 is confined to an erroneous assumption of jurisdiction or erroneous failure to exercise jurisdiction or the exercise of jurisdiction illegally or with material irregularity as was observed in Pandurang Dhondi v. Maruti Hari Jadhav, : 1SCR102 . It was contended that none of these tests laid down are present in the instant case and accordingly this court is not entitled to interfere with the order which does not touch the jurisdiction of the trial court to pass such order. This contention appears to us to be untenable in the present case as according to the petitioner if there has been a dismissal of the suit against the defendant No. 2 as contended the trial court thereafter had no further jurisdiction to pass any direction on the defendant No. 2 to disclose the names of the heirs of the defendant No. 1.
16. However, for the reasons given above, this rule has to be and is discharged and in the circumstances of the case there would be no order as to costs.
17. Let the records be returned to the trial court as early as possible.
18. I agree.