B.N. Banerjee, J.
1. An interesting question regarding the substitution of heirs, on the death of the deceased plaintiff, has been raised in this Rule.
2. One Bimala Bala Ghosh now deceased, tiled a suit for ejectment of the defendant petitioner from premises No. 117, Akhil Mistry Lane, Calcutta, in which the defendant was a tenant.
3. The aforesaid suit, being Suit No, 1889 of 1952, was decreed ex parte on 22-2-1953.
4. Thereafter, on 1-4-1953, the defendant petitioner filed an application, under Order 9 R. 13 of the Code of Civil Procedure, for setting aside the aforesaid ex parte decree, on the allegation that he came to know of the decree only on 31-3-1953. The aforesaid application was registered as Misc. Case No. 61 of 1953.
5. During the pendency of the aforesaid Misc. case, the plaintiff decree-holder Bimala Bala Ghosh died, on 23-12-1953. One of her sons Anil Kumar Ghosh entered appearance in the Misc. Case, under Order 9, R. 13 of the Code of Civil Procedure, on 18-1-1954 and by an application filed on the same date brought to the notice of the court the fact of death of Bimala Bala Ghosh and prayed for an adjournment of the hearing of the matter, so as to enable him to continue the execution proceeding.
6. By an order dated 23-2-1954, the court below adjourned this Miscellaneous case to 9-3-1954, for substitution of the heirs of the deceased plaintiff decree-holder. The case was again adjourned to 18-3-1954, by an order passed on 9-4-1954.
7. On 18-3-1954, the following order was passed by the court below:
'Applicant Anil Kumar Ghosh files a petition praying for substitution of his name as legal heir of the plaintiff since deceased. Defendant also files a petition praying for substitution of the name of (1) Sailendra Ghosh (2) Mohit Ghosh (3) Ajit Ghosh and Anil Kumar Ghosh, all sons, heirs and legal representatives of the plaintiff since deceased. The prayer of the defendant is allowed on consent. Let their names be brought on record as prayed for. Sri P. K. Roy, undertakes to Pile power on behalf of the plaintiff on the next date. To 26/4/54 for hearing of the Misc. Case.'
8. The learned Judge was not right in treating the application filed by Anil Kumar Ghosh as an application for substitution. That application was labelled as one under Order 21, Rule 16 read with Section 146 of the Code of Civil Procedure and the prayer was to allow him to continue proceedings in execution of the decree obtained by his mother which was then pending. There was no prayer made by Anil Kumar Ghosh to secure a representation of the totality of the interest of the deceased plaintiff. He wanted to proceed with the execution case as one of the persons on whom the interest of the deceased decree-holder had devolved by operation of law. He felt no necessity to apply for substitution of the heirs of the deceased plaintiff, because under Order 22, Rule 12 of the Code of Civil Procedure, Rules 3, 4 and 5 of Order 21 did not apply to execution proceedings,
9. Be that as it may, on the application of the defendant the substitution of the heirs and legal representatives of the deceased plaintiff was made in the Miscellaneous case, as stated above.
10. Thereafter, by an order dated 1/4 March 1953, the Miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure was allowed and the ex parte decree was set aside.
11. No application for substitution of themselves, in place of the deceased plaintiff, was made by her sons and heirs after the ex parte decree had been set aside and the suit restored to file. Curiously enough, in the original plaint the following note in red ink was made at the place where the name of the original plaintiff was written :
(1) Sailendra Nath Ghosh
(2) Mohit Kumar Ghosh
(3) Ajit Kumar Ghosh and Anil Kumar Ghosh all sons and legal representatives of Sm. Bimala Bala Ghosh (deceased).
12. In the margin of note appears the signature of the Judge. Below the signature of the Judge there are two dates written namely '18-3-54' and '17-12-54' or may be '17-12-54', the year of the latter date is not quite ligible.
13. The order dated 18-3-1954, has already been quoted hereinbefore. There is nothing contained in the said order for the amendment of the plaint by inclusion of the names of the heirs of the deceased plaintiff. In the order-sheet there is no order dated 17-12-1954. On 17-12-1953, however, there is the following order to be found in the order-sheet:
'Parties file haziras. Defendant files a petition praying for time on the ground of illness of his pleader. Prayer is allowed, To 21-1-56 for hearing of Defendant's petition. Costs Rs. 5/- to plaintiff.'
14. None of the orders above referred to deal with the amendment of the plaint. When and under what order the note in red ink was made on the plaint remains a mystery. Before the trial court the heirs of the deceased plaintiff took up an attitude that there was no necessity for fresh substitution of the heirs of the deceased plaintiff in the suit. In this connection, I refer to the following extract from a petition filed on behalf of the heirs of the deceased plaintiff on 6-2-1956:
'That the names of the heirs of the original plaintiff, Sm. Bimala Bala Ghosh, since deceased, have already been brought on record.
In the circumstances the suit be proceeded with and a date be fixed for final hearing of the suit.'
15. By four petitions dated 26-9-1955, 8-3-1956, 17-5-1956 and 9-6-1956, the defendant petitioner prayed for an order of abatement being recorded in the suit and also objected to the amendment made in the plaint, by insertion of the names of the heirs of the deceased plaintiff, which amendment was characterised as illegally made.
16. The aforesaid four applications by the defendant petitioner as also the application by the heirs of the plaintiff dated 6-2-1956, an extract from which has been quoted above, were taken up for hearing together. By his order dated 29-11-1956, the trial court held as hereinbelow quoted:
'(a) On 1-4-53 Sri Banerjee filed an application under Order 9, R 13, C. P. C., to set aside the ex parte decree passed in the ejectment suit on the ground of non-service of the summons on him, On 18-1-54 an application was filed by Sri Anil Kumar Ghosh, son of Bimala Bala Ghosh alleging that Bimala Bala Ghosh died at her Calcutta residence on 23-12-53. Thereafter the present deft. Sri Banen'ee substituted the names of Sailendra Ghosh, Mohit Ghosh, Ajit Ghosh and Anil Kumar Ghosh as the heirs and the legal representatives of Sm. Bimala Bala Ghosh on 18-3-53. It would appear that not only the application under Order 9, Rule 13 C. P. C., was amended in the way mentioned above, but the original plaint also appears to have been amended on that date.
(b) It appears to me that the application under Order 9, Rule 13. C. P. C., is really an application in the suit itself. In the present case the original decree-holder died during the pendency of the application under Order 9, Rule 13, C. P, C. It cannot be urged that the death of Bimala Bala Ghosh would disentitle the deft, from continuing with his application under Order 9, Rule 13, C. P. C. The defendant had clearly the right to substitute the heirs of Bimala Bala Ghosh in the application. But the substitution can only be made on the basis that on the death of Bimala Bala Ghosh, the interest in the decree devolved on her sons and heirs and that from the date of death, they were in the position of the decree-holder. If that was the position on the date the sons of Bimala Bala Ghosh were substituted in the Mis. case, the position cannot be otherwise after the revival of the suit by an order in the Misc. Case. Therefore It must be held that the sons of Bimala Bala Ghosh were in fact substituted not only in the application under Order 9, Rule 13, C. P. C., but also in the suit itself.'
17. In the above view of the matter, the trial court dismissed all the four applications made by the defendant petitioner, disallowed the prayer for recording an order of abatement of the suit and negatived his objection to the amendment of the plaint. The defendant petitioner obtained the present Rule against the aforesaid order.
18. Mr. Umaprasad Mookerjee, the learned Advocate for the petitioner, urged before me that the proceeding under Order 9, Rule 13 of the Code of Civil Procedure was a separate proceeding and was not in continuation of the suit. Therefore, he argued, a substitution of the heirs of deceased plaintiff made in the Miscellaneous case under Order 9, Rule 13, of the Code of Civil Procedure would not amount to substitution of the heirs of the plaintiff in the suit itself. And if substitution of heirs was not made separately in the suit itself the legal con-sequences must follow. Mr. Mookerjee was conscious of the observation made by Lord Dunedin in the case of Brij Indar Singh v. Kansiram, 44 Ind App 218 at p. 228: (AIR 1917 PC 156 at p. 161), to the effect that introduction of a plaintiff or a defendant at one stage of a suit was an introduction for all stages. He argued, however, that a proceeding under Order 9, Rule 13 of the Code of Civil Procedure was no stage in the suit and the aforesaid observation by the Privy Council made in connection with substitution of a party, in an interlocutory proceeding in a suit was of no authority in the present context.
19. The question, therefore, is whether a proceeding under Order 9, Rule 13 of the Code of Civil Procedure is a continuation of the suit and is a stage in the suit itself. I am of opinion that proceeding under Order 9, Rule 13 of the Code of Civil Procedure is an original proceeding quite independent of the suit, the suit itself having had been disposed of as decreed ex parte.
20. In this view, I am fortified by three decisions of Madras High Court reported in AIR 1926 Mad 325, K. Venkatanarasimha Rao V. Hemadri Suryanarayana; AIR 1926 Mad 654, Salar Beg Saheb v. Kotayya; AIR 1936 Mad 660, Basappa v. Hansaji-Gulabchand Firm and also a Division Bench decision of this Court reported in 21 Cal WN 30: (AIR 1917 Cal 548(1)), Bepin Behari v. Abdul Barik.
21. That being so, a substitution of heirs made in the Miscellaneous case under Order 9, Rule 13 of the Code of Civil Procedure did not ipso facto amount to substitution of heirs also in the suit, because a proceeding under Order 9, Rule 13 of the Code of Civil Procedure is not a stage in the suit nor a continuation of the suit itself. The observation by the Privy Council in 44 Ind App 218 at p. 228; (AIR 1917 PC 156 at p. 161), above referred to, does not stand in the way of the argument made by Mr. Mookerjee.
22. At the same time it is to be remembered that no necessity arises for substitution of a deceased party in the suit itself, so long as the ex parte decree stands and at the time when the ex parte decree may be set aside, ninety days may also elapse from the date of death of the party.
23. That is exactly what has happened in the instant case. There was no necessity or occasion for substitution of the heirs of the deceased plaintiff so long as the ex parte decree stood. When the ex parte decree was set aside and the suit restored, the position was that a dead plaintiff was left in charge of the suit. Nothing compelled the heirs of the dead plaintiff to take her place and to go on with the suit unless they themselves chose to substitute themselves and to carry on the suit. The further hurdle in their way was that the time for substitution had already run out and the restored suit had abated. If, in these circumstances, the opposite parties had made an application for setting aside abatement under Order 22, Rule 9(2) of the Code of Civil Procedure, such an application would have been irresistible, but unfortunately they did not care to file such an application.
24. Possibly, the opposite parties were misled by the fact that the court had also amended the plaint, by bringing on record the opposite parties as heirs of the deceased plaintiff, Bimala Bala Ghosh. When and how that was done has already been indicated. I am clearly of opinion that the aforesaid amendment of the plaint, by bringing on record the heirs of the deceased plaintiff was not lawfully done and was of no effect.
25. The position, therefore, is that the restored suit must be regarded as a suit which has abated.
26. The question whether still now the opposite parties can have the abatement set aside by an application under Order 22, Rule 9(2) of the Code of Civil Procedure, I keep open and I express no opinion in this respect. I have no doubt, if such an application is made, the court below will consider the application on its merits in the background o all that have happened in this case.
27. This Rule is, however, made absolute and the order made by the court below is set aside. The court below shall now record an order of abatement in the suit
28. In the circumstances of the case, I makeno order as to costs.