P.C. Mallick, J.
1. There are two applications before me -- one by the plaintiff for withdrawal of the suit and for discharge of the Receiver, the other by the legal representative of the deceased defendant Rabindra Nath Coomar inter alia for setting aside the abatement and for substitution.
2. The suit was instituted by the plaintiff for partition. The joint family estate consists of various properties including extensive paddy lands in the village of Hatni in the District of Hooghly. After the institution of the suit, the Official Receiver was appointed Receiver of about 4000 maunds of paddv amongst other properties. Except Charubala all the other defendants have entered appearance and filed their respective written statements. Thesuit, I understand, is now ready for hearing and is appearing in the Prospective List.
3. On Apiil 2, 1959 Charubala died. Charubala is the mother of Rabindra and Ratindra the defendants Nos. 1 and 2. She has also several daughters. It is alleged that Charubala left a will whereby she appointed Hatindra as her executor. The will, however, has not been probated as yet. About a week after the death of Charubala Rabindra died intestate leaving him surviving his widow and several sons and daughters. No substitution of the heirs of either Charubala or of Rabindra was made within the 90 days provided by law and in July the suit abated as against Charubala and Rabindra.
4. On July 20, 1959 the plaintiff took out a notice of motion asking leave to withdraw the suit and praying that the Official Receiver be discharged from further acting as Receiver. This application is being supported by the defendants Nos. 4 to 12 and is being opposed by the defendant No. 2, the other defendants, namely, Rabindra and Charubala having already died. Thereupon the heirs and legal representatives of the defendant Rabindra took Out a summons asking that the abatement of the suit be set aside, that the death of the defendants Charubala and Rabindra be recorded and that the applicants be substituted as heirs and legal representatives of Rabindra. These are the two applications now before me and this judgment disposes of both the applications.
5. I will deal first with the application for setting aside the abatement and for substitution. It is to be noted that the application for substitution and setting aside the abatement is opposed by the plaintiff and the defendant Nos. 4 to 12. The argument in opposition to the application was made by Mr. B.C. Dutt appearing on behalf of the defendants Nos. 4 to 12. Plaintiff now appearing in person supported Mr. Dutt. Mr M.N. Banerjee appeared on behalf of the applicants in support of the application. Mrs. Roy appearing for Ratindra supported Mr. Banerjee. This is the grouping of the parties before me.
6. Mr. B.C. Dutt in opposing the application submitted that the application is mis-conceived and in law must be dismissed on the ground that an application to set aside an abatement cannot be maintained by the legal representative of the deceased defendant. Order 22 Rule 9 only enables the plaintiff or the heirs and legal representatives of the plaintiff or the assignee of the plaintiff tp make an application to set aside an abatement. Before abatement the legal representative of the deceased plaintiff or defendant is entitled to make an application for substitution under Order 22 Rule 3 or Order 22 Rule 4. The language used being 'on an application made in that behalf.' The language is very wide in its scope to cover all. The language of Order 22 Rule 9 however makes it clear that an application to set aside an abatement cannot be made by anybody except the plaintiff or the legal representative or assignee of the plaintiff. Right to apply to set aside an abatement being thus restricted, the present application by the legal representative of the deceased defendant fails on the ground of maintainability. Mr. Banerjee contended that in a partition suit even the defendant is in the position of a plaintiff and as such the legal representative of a deceased defendant is entitled to apply under Order 22 Rule 9 of the Code. Though this argument has some plausibility, I feel unable to accept it in the absence of a binding decision of any Court. I agree with Mr. B.C. Dutt that on the language of Order 22 Rule 9. it Is not possible to hold that the legal representative of a deceased defendant is entitled to make an application to set aside an abatement even if the suit is a partition suit. In my judgment the petitioners are nol entitled to apply to set aside the abatement of the suit as against the deceased defendant. There is no other provision in the Code giving power to a defendant to set aside an abatement. Indeed in oidinary cases there is no necessity to enable a defendant to set aside an abatement. An abatement of the suit affects the plaintiff prejudicially and the plaintiff is prevented from instituting a fresh suit on the same cause of action. Henee it is provided in Order 22 Rule 9 that in suitable cases the Court will give relief to the plaintiff and save the suit by setting aside abatement. Setting aside an abatement enures to the benefit of the plaintiff and to the prejudice of the defendant in ordinary suits. In our country in which counter claim is unknown, no decree can be passed in favour of the defendant in ordinary cases. There is therefore no provisions in the Code to enable a defendant to make an application to set aside an abatement.
7. There are however certain classes of suits in a defendant is equally interested. Such are for example partition or administration suits. In such suits the decree passed enures not merely for the benefit of the plaintiff but for the benefit of the defendants as well. It is because of this that it is stated that in a partition suit everybody including the defendants are in the position of the plaintiff If such a suit for partition abates by reason of the death of one of the defendants, when the proceedings have far advanced and have reached almost the journey's end, is the Court powerless to save the suit if the plaintiff or his legal representative as the case may be refuses to apply to set aside abatement? In such cases even though the defendant has been given no power to make an application to set aside the abatement, the Court has inherent power to set aside abatement and enable the suit to be proceeded with. The Court should exercise this inherent power to save the parties, the trouble and costs of a second partition suit and traverse the grounds already traversed. That the Court has this inherent power and should exercise it in appropriate cases has been recognised by the Madras High Court and the Bombay High Court in cases to be noticed presently.
8. Even if the Court sets aside the abatement, the defendant is confronted with a difficulty equally formidable. Order 22 Rule 4 no doubt enables the defendant or his legal representative to make an application for substitution but the Limitation Act expressly provides that such an application must be made within 90 days. Though Section 5 of the Limitation Act has been made expressly applicable by Order 22 Rule 9 of the Code to an application to set aside an abatement, it has not been made applicable to an application for substitution under Order 22 Rule 3 or Rule 4. It would therefore seem that a defendant after abatement is neither entitled to make an application to set aside an abatement or to make an application for substitution either. Even though the Court has inherent power to set aside an abatement, it would not enure to the benefit of the defendant or his legal representative in a partition suit having regard to the fact that the right to apply is time barred.
9. There is however the provisions of Order 1 Rule 10 of the Code which is very wide in its terms and which would enable the legal representative of a deceased defendant to be added as a party, Order 1, Rule 10(2) provides:
'The Court may at any stage of the proceeding .. . . order that the name of any person who ought to have been joined whether as plaintiff ordefendant or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in a suit be added.'
This power is very extensive and there is no limitation curtailing or restricting the power of the Court to add parties under Order 1 Rule 10 of the Code of Civil Procedure. In exercise of the power under this rule, the Court has power and should exercise that power to save a partition suit which has abated. The defendant or his legal representatives in a partition suit is equally interested as the plaintiff in having the properties in suit partitioned. In fact in the instant case the defendants have claimed that their share in the property be also partitioned by metes and bounds in this proceeding. The position of the parties in a partition suit is different from the position of the parties in ordinary suit. In a partition suit every party is in the position of the plaintiff and the Court in such cases should in exercise of the power under Order 1, Rule 10 add the legal representatives of a deceased party even after the suit is abated. The legal representatives of the deceased defendants are co-sharers and as such necessary parties in partition suit. The direct authority in support of this proposition is the decision of the Bombay High Court in the case of Lakshmichand Rewa Ghana v. Kachubhai Gulabchand reported in ILR 35 Bom 393. At p. 395 of the report Scott C. J. makes the following observations:
'It is obvious, however, that in a partition suit all the parties should be before the Court, The suit has actually reached the stage of a commission to divide the property, and the applicant is a sharer. Nothing in the Code limits or affects the inherent power of the Court to make such orders as may be necessary for the ends of justice, and under Order 1 Rule 10, the Court may, at any sfage of the proceedings, order that the name of any person whose presence may be necessary in order to enable the Court effectively and completely to adjudicate upon and. settle all the questions involved in the suit, be added. We, therefore, order that the applicant be added as a defendant in the suit, being bound by all the proceedings up to date.'
10. A strong Bench of the Madras High Court consisting of Rameswar and Mad'havan Nair JJ. has held in the case of Ramakrishna Reddy v. Narasimha Reddi reported in : AIR1932Mad527 that the Court has inherent power to set aside an abatement even though the defendant or respondent has no right to apply. In their Lordships' view setting aside an abatement is for the benefit of the plaintiff Or appellant and when the respondent is asking to set aside the abatement, so that the appeal may be heard the application was for the benefit of the appellant and the Court should allow substitution. Mr. Dutt submitted that the judgment does not appear to be a well considered judgment. In any event, the reason given does not apply to cases where there are more defendants or respondents than one. In such abated suits, the restoration of the suit by setting aside the abatement may enure to the prejudice of the other defendants. It must be conceded that this criticism of Mr. Dutt has some force. This Madras case is an authority for the proposition that the Court has inherent power to set aside an abatement. Criticism of Mr. Dutt does not touch this point. The facts in the Madras case may be different, from the instant case there being more defendants than one in the instant case. But the instant suit is a partition suit and I do not understand how an order setting aside abatement and allowing the suit to proceed will enure to the prejudice of the defendants Nos. 4 to 11. The only alternative torestoration of the suit is the institution of a fresh suit for partition and there would be long drawn proceedings and unnecessary costs will have to be incurred afresh. In my judgment restoration of the suit by setting aside abatement will enure as much to the advantage of Mr. Dutt's clients as to other parties.
11. For the reasons stated above, I make an order setting aside the abatement suo motu in exercise of my inherent power and add the applicants as parties in exercise of powers under Order 1 Rule 10.
12. There will be an order so far as the second application is concerned, in terms of paras a, b, c and d.
13. As I stated before, apart from Rabindra, there has been another death during the pendency of the suit, namely, the death of Charubala. There is a dispute between the parlies as to whether Charubala left a Will or whether Charubala died intestate. If Charubala did the intestate, in that event, under the existing law, Rahindra and Rathindra and the daughters of Charubala are heirs and as such necessary parties in a partition proceeding. Not so if there is a Will in which case the executor is the necessary party. There being a dispute whether there is teslacy or, intestacy, the proper order in this case would be that Rathindra, who is mentioned as executor, be appointed administrator-ad-litem for the purpose of this suit and I make an order accordingly. Rathindra is already on record. He, will, therefore, be a party also as the administrator-ad-litem of the estate of Charubala.
14. The next application is by the plaintiff for withdrawal of the suit. Mr. Banerjee for the heirs of Rabindra intimates that his clients are willing to carry on the suit. This being a partition suit, I do not think that I will allow the plaintiff to withdraw the suit. The proper thing to do is to transfer the plaintiff from the category of plaintiff to that of the defendant and to mate the heirs of Rabindra the plaintiffs and I make an order accordingly.
15. This disposes of both the applications. Costs of the parties will be costs in the cause. Certified for Counsel,
16. Mr. Banerjee appearing for the legal representatives states that his clients will adopt the written statement filed by Rahindra and that no further pleadings be filed on behalf of the added parties.
17. I grant leave under Clause 12 to Mr. Banerjee's clients (or the transposition.
18. Let this order be expeditiously drawn upand necessary consequential amendments effected.