G.N. Ray, J.
1. This Rule is directed against Order No. 21 dated 14-6-1977 passed by the learned Munsif, 5th Court, Alipore, in Title Suit No. 448 of 1974. The petitioners are the plaintiffs in the said title suit and the aforesaid suit was filed by the petitioners for ejectments of their tenant Md. Khalil on the ground of default and subletting. The said suit was instituted on the 21st Sept. 1974. During the pendency of the said suit on the 22nd June, 1975, Md. Khalil died. On 11th Sept. 1975, within 90 days from the date of death of Md. Khalil, the plaintiffs made an application for substitution of two of his heirs namely, Sk. Gulzar and Abdul Wadood. On 10th Nov. 1975, another supplementary petition was filed by the plaintiffs for substitution of the remaining heirs of Md. Khalil who were not impleaded in the earlier application dated 11th Sept. 197.1 It appears that on 22nd March, 1976, both the said two petitions for substitution were heard ex parte and were allowed. It appears that on 11th May, 1977. Sk. Gulzar, opposite party No. 1 (a) appeared in the title suit No. 448 of 1974 and made an application inter alia praying for dismissal of the suit on the ground that the said suit has abated as a whole. The plaintiffs-petitioners filed objection to the said application, of Sk. Gulzar and by the impugned order, the learned Munsif held that the other heirs not having been brought on record within the period of limitation, the suit abated as a whole and against the said order of the learned Munsif, the revisional application was made by the plaintiffs-petitioners and the instant Rule was issued.
2. Mr. Baueijee, the learned Counsel appearing for the opposite party raised a preliminary objection to the effect that the order of abatement since challenged in the revisional application was an appealable order and as such no revisional application is maintainable in law. For tin's content ion Mr. Banerjee referred to the decision, made in the case of Naimuddin Biswas v. Maniruddin Nashkar reported in 32 Cal WN 299 : (AIR 1928 Cal 184). It was held by the Division Bench in the said case that an order of abatement is virtually a decree and so long as it stands it must be considered to have determined the rights between the parties. Mr. Banerjee also referred to a decision of the Lahore High Court made in the case of Udmi v. Hira reported in 60 Ind Cas 111 : (AIR 1920 Lah 338). It was held in the said case that an order declaring the abatement of an appeal on the ground that the legal representatives of certain deceased respondents have not been biought on record is a decree and is appealable as such. Mr. Banerjee also referred to another decision of this Court made in the case of Sabitri Bai v. Jugal Kishore Das reported in 43 Cal WN 41 : (AIR 1938 Cal 639). It was held in the said case that an order of abatement under Order XXII, Rules 3 and 4 of the Civil P. C. comes within the definition of 'decree' and as such is appealable. Relying on the aforesaid decisions Mr. Banerjee contended that as the learned Mnnsif passed the order directing that the appeal had abated, the plaintiffs could only challenge the said order by preferring an appeal and there was no scope of moving this Court under Section 115 of the Civil P. C. Mr. Bancrjee also referred to the provisions of Section 105 of the Civil P. C. and contended that under the provisions of the said section, the plaintiffs could also agitate against the correctness of the decision passed by the learned Munsif. Mr. Banerjee contended that when in an appeal all the contentions can be effectively agitated by the plaintiffs, interference under Section 115 of the Civil P. C. is not warranted.
3. In reply to the aforesaid preliminary objection raised by Mr. Banerjee, Mr. Bose, the learned Counsel appearing for the petitioners in the instant Rule contended that in the instant case, an application for substitution of the heirs and legal representatives was made by the plaintiffs within the period of limitation but as the plaintiffs were only then aware about the existence of two of such heirs, the said persons were brought on record by making an application for substitution. Subsequently on coming to know of the existence of other heirs, a supplementary application was also made to bring the said other heirs on record and the learned Munsif allowed both the said applications and directed for substitution of the said heirs and legal representatives. By the impugned order, the effect of the previous order passed by the learned Munsif in allowing the application for substitution has been negatived and in such circumstances it cannot be contended that the impugned order is an order of abatement simpliciler. Hence, the petitioners are quite entitled to move this Court in revision against the impugned order. Mr. Bose further contended that in any event, the order of abatement noted by the learned Munsif is not an appealable order because there has not been any formal adjudication of the rights of the parties by the court. The Court only noted the facts of the case and stated that there had been a death of the defendant and all the heirs of the defendants had not been impleaded within the period of limitation. Mr. Bose submitted that what amounts to a 'decree' was taken into consideration by a Division Bench of this Court in the case of Sudhabodh Misra v. State of West Bengal reported in (1978) 1 Cal LJ 336. In the said case, the question for determination before this Court was as to whether an appeal or revision will lie against an order of abatement passed under S, 57B of the West Bengal Estates Acquisition Act. For considering the said question, the definition of 'decree' was also taken into consideration by the Division Bench of this Court and it was held that an order to be a 'decree' within the meaning of Section 2(2) of the Code of Civil Procedure must satisfy the following tests, namely, (a) the order must he an order passed in a suit and not in a proceeding, (b) the order must decide and adjudicate upon the rights of the parties to the suit relating to the matter in controversy in the suit and (c) the decision or determination shall be conclusive and final so far as the court determining the same is concerned. It was also held that the rights mentioned in the said Section 2(2) of the Civil P. C. refer to substantive rights in regard to the subject-matter of the suit and not merely a procedural right. The decision of this Court made in the said case of Naimuddin Biswas v. Maniruddin Nashkar (32 Cal WN 299): (AIR 1928 Cal 184) was also taken into consideration by their Lordships arid it was held by their Lordships in the said case of Sudhabodh Misra v. State of West Bengal that this court only held in the case of Naimuddin Biswas that an order of abatement is virtually a decree as it disposes of the plaintiffs claim as completely as if the suii was dismissed. It was further held that in the said decision of Naimuddin Biswas it was not decided that an Order of abatement was technically a decree. In the said decision of Sudhabodh Misra, reference was also made to a Full Bench decision of the Lahore High Court made in the case ot Niranjan v. Afzal reported in AIR 1916 Lah 245. It was held by the Full Bench of the Lahore High Court in the said case that when a Court passes a formal order recording abatement which is a fait accompli such an order though disposing of the suit, does not adjudicate upon any rights and cannot be treated as a decree. Relying on the said decisions, Mr. Bose contended that although the learned Munsif noted the said fait accompli, namely, the death of the defendant and not bringing of all the heirs of the said defendant within the period of limitation, it cannot be contended that there had been a formal adjudication of the rights between the parties by the order and in such circumstances it cannot be contended that the revisional application did not lie to this Court.
4. After considering the facts and circumstances of the case and the respective submissions made by the learned Counsel appearing for the parties, it appears to me that the contentions raised by Mr. Bose are of substance and I am inclined to accept the same. Apart from this, by the impugned order, the learned Munsif has in effect nullified the order of siibstitution passed by him earlier. Accordingly, although in the impugned order the Court directed that the suit had abated as a whole, the order is virtually an order recalling the earlier order allowing the application for substitution and as such in any event in the facts of the instant case, the revisional application lies to this Court, even assuming that an order of abatement simpliciter is a 'decree' and as such appealable.
5. So far as the merits of the case are concerned, Mr. Bose submitted that the plaintiffs made an application for substitution of the heirs and legal representative's of the deceased defendants within the period of limitation but as the plaintiffs were not aware at that point of time as to the existence of other heirs and legal representatives of the said deceased, the plaintiffs made application for substitution of only two of the heirs who were then known to be the only heirs of the deceased defendant. Subsequently, the plaintiffs having come to know about the existence of other heirs immediately made an application before the court stating the said facts for bringing the other heirs on record and as aforesaid, the court on consideration of the said applications allowed the said applications for substitution of the heirs and legal representatives of the deceased defendant. Mr. Bose contends that there has not been any finding whatsoever by the trial court as to any collusion or mala fide on the part of the plaintiffs in not bringing all the heirs in time. Mr. Bose in this connection referred to the decision of the Supreme Court made in the case of Harihar Prasad Singh v. Baimiki Prasad Singh reported in : 2SCR932 . It was held in the said decision that where a plaintiff or an appellant after deli-gent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal; the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record binds not merely those impleaded but the entire estate including the interest of those not brought on record. It was further held in the said decision that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, the heirs who have applied for being brought on record should be held to represent the entire estate including the interests of the heirs not brought on the record. The fraud or collusion must be a fraud or collusion between the appellant on the one hand and the representative of the deceased respondent who is brought on record on the other and vice versa. Relying on the aforesaid decision, Mr. Bose contended that admittedly in the instant case, two of the heirs of the deceased defendant were brought on record within the period of limitation and in the absence of any finding by the court that there was any fraud or collusion between the plaintiffs and the said heirs of the deceased defendant and/or in the absence of any finding that deliberately the plaintiffs did not bring the other heirs on record within the period of limitation, there was no occasion on the part of the court below to proceed on the basis that there had been an abatement of the suit. Mr. Bose also submitted that by way of abundant caution, the defendant has also made an application for setting aside abatement after condonation of delay in respect of the said remaining heirs of the deceased defendant who could not be brought on record within the period of limitation in the aforesaid facts and circumstances of the case. Mr. Bose contended that filing of such application for setting aside abatement after condonation of delay cannot debar the petitioner to challenge the legality of the order passed by the court below in recording the abatement of the suit as a whole. In my 'view, the aforesaid contention of Mr. Bose is of substance and should be upheld. On the face of the admitted facts that some of the heirs of the deceased defendants were brought on record within the period of limitation, the learned Munsif was not justified in holding that the entire suit had abated for not bringing the other heirs on record without coming to any finding whatsoever as to whether the other heirs were left out deliberately by the plaintiffs or on account of some fraud or collusion between the plaintiffs and those heirs of the deceased defendant who were brought on record in time. In the aforesaid view, the impugned order is set aside and the learned Munsif is directed to consider afresh as to whether the application for substitution of the said two heirs of the deceased defendants and the subsequent applications for substitution of the remaining heirs had been made bona fide or not. As the petitioners have already made an application for setting aside abatement after condonation of delay by way of abundant caution, it is desirable that the said application for setting aside abatement should also be considered along with the application made by Sk. Gulzar for passing an order of abatement of the suit.
6. This Rule is disposed of accordingly. There will be no order as to costs.
7. Let the records be sent down as expeditiously as possible.