S. Datta, J.
1. On the 6th December 1939 Kaviraj Sudhindranath Sen filed this mortgage suit against the mortgagor Narsinghdas Agarwalla who is now represented by his nephew, sole heir and legal representative, Jibandas Agarwalla and against Nawab Habibulla for himself and his co-sharers of the Dacca Nawab Estate represented by the then Chief Manager, Court of Wards.
2. In or about 1939 the plaintiff obtained leave under O. L.R. 8 of the Civil Procedure Code from the Hon'ble Mr. Justice McNair. Thereupon notices were published under 0. 1 R. 8 of the Code in the Statesman and Mohammadi.
3. In January 1948 the then Manager of the Court of Wards of the Dacca Nawab Estate Mr. AM Azam filed a warrant of attorney in favour of M. K. Roy Chowdhury and Co. solicitors. Thereafter an application was made by 54 co-sharers of Nawab Habibulla for being added as parties to the suit and for extension of time to file written statements. In June 1948 this application was granted by the Hon'ble Mr. Justice Majumdar.
4. In August 1958 the suit was mentioned for early hearing before me when it was directed that the suit would appear in the peremptory list on the 2nd December 1958 after the long vacation.
5. On the 19th November 1958 Messrs, M. K. Roy Choudhury and Co. intimated to the plaintiff that some of the defendants had died years ago. In that letter the name of one K. Hamidulla was also mentioned though he was not then a party in this suit.
6. On the 26th November 1958 Messrs. M. K. Roy Chowdhury and Co. again intimated the plaintiff that Nawab Habibulla had died on the 20th day of November 1958.
7. Thereafter on the application of the plaintiff the heirs and legal representatives of the deceased defendants mentioned in the said letter dated 19th day of November 1958 and K. Hamidulla were brought on the record.
8. Thereafter on the application of the plaintiff the heirs and legal representatives of Nawab Habibulla were brought on the record.
9. Thereafter on the 23rd November 1959 when the suit was about to come for hearing, Messrs. M. K. Roy Chowdhury and Co. intimated the plaintiff that the defendant Parui Bannu had died on 23rd October 1958, that is to say about a month before the death of Nawab Habibulla. Thereafter the heirs and legal representatives of Perui Bannu were brought on the record.
10. In or about December 1959 Messrs. M. K. Roy Chowdhury and Co. withdrew from the suit with the leave of the Court.
11. On the 9th May 1960 Kazi Md. All, Supreme Court Advocate, filed a warrant of attorney on behalf of six defendants out of the 87 defendants then on record.
12. On the 7th August 1961 the said Mr. Kazi Md. Ali informed the plaintiff's Supreme Court Advocate Sri R. L. Tarafdar the death of K. Md. Esmail defendant no. 3/, K. M. Siedulla alias Saha Alam defendant No. 50 and K. Ashraf Alam defendant No. 16 but did not disclose the names and particulars of their heirs.
13. Thereafter the plaintiff made strenuous efforts to get the names of the heirs and legal representatives of the deceased defendants without success.
14. Thereafter on the 18th January 1962 this application was inter alia for orders or directions:
(1) That recording of the deaths of deceased defendants is not needed in this suit, or in the alternative
(1) That the respective deaths of the defendants K. M. Siedulla alias Saha Alam (defendant No. 15), K. Ashraf Alam (defendant No. 16) and K. Md. Esmail (defendant No. 37) be recorded.
(2) That substitution and bringing on record the heirs or deceased defendants are not needed in this suit.
Or if it is held by the Court that substitution is to be made and made by the plaintiff,
then in the alternative,
(2) The Manager, Court of Wards, Dacca Nawab Estate and Kazi Md. Ali be directed to supply names and descriptions of the heirs of the deceased defendants ana thereafter reasonable time be allowed to your petitioner to do what may be directed by the Honourable Court.
(3) That there has been no abatement or in the alternative
(3) That abatement if any be set aside.
(4) That the suit may not be placed in the hearing list until the disposal of this application.
15. In this case Mr. J. Majumdar sought to appear on behalf of the plaintiff as an Advocate without the assistance of a solicitor or Supreme Court Advocate. I did not allow him to do so in view of the provisions of the original Side Rules.
16. Mr. Majumdar was ready with the application which involved points of law and he stated, if I remember aright, that he was doing it free of charge. In these circumstances, I desired that Mr. Majumdar should appear as an amlcus curiae which he was good enough to agree readily.
17. Mr. Majumdar explored avenues in this application which were not indicated at all in previous applications on similar occasions.
18. Mr. Majumdar submitted that the plaintiff's prayers 'that the recording of the deaths of the deceased defendants K. M. Siedulla alias Saha Alam (defendant No. 15), K. Ashraf Alam (defendant No. 6) and K. Md. Esmail (defendant No. 37) is not needed and that there has been no abatement in this suit by reason of the said deaths' can be supported on the basis of Calcutta Amendment added to Sub-rule (4) of Order 22 of the Civil procedure code.
19. Rule 4 of Order 22 is as follows:--
'4. Procedure in case of death of one of several defendants or of sole defendant-- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sola defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant.'
20. The relative Calcutta Amendment to Sub-rule (4) is as follows:
'(4) The Court, whenever it sees fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing and judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.'
21. The said deceased defendants have failed to appear and/or contest the suit at the hearings after Messrs. M. K. Roy Chowdhury and Co., solicitors withdrew from the suit.
22. Therefore, in my opinion their case falls within the amendment to Sub-rule (4) of Rule 4 of Order 22 of the Civil Procedure Code. Hence, there is no necessity for subStitutkm of the heirs and legal representatives of the said defendants. Consequently there cannot be and there was no abatement of the suit. Hence the suit is competent as it is.
23. This ground is sufficient, in my opinion, to dispose of this application.
24. Be that as it may in view of the fact that several points have been canvassed before me it would be preferable to record the same.
25. Mr. Majumdar also submitted in the alternative that the said prayers of the plaintiff could be supported also on the, ground that the suit was a representative suit under Order 1 Rule 8 of the Civil Procedure Code, for in a suit under Order 1 Rule 8 of the Civil Procedure Code there is no necessity to substitute the heirs of legal representatives of those who have become parties under Sub-rule (2) of Order 1 Rule 8 of the Civil Procedure Code.
26. Mr. Majumdar also submitted in the alternative that the Court should make a fresh appointment in the place and stead of Nawab Habibulla and that in case of such appointment it was not necessary to direct further issue of advertisements in newspapers under Order 1 Rule 8 of the Civil Procedure Code.
27. Mr. Roy Chowdhury, learned Advocate for the six contesting defendants submitted that no representative mortgage suit can be filed however numerous may be the mortgagees.
28. Mr. Roy Chowdhury, in the alternative submitted that the suit was never a representative suit. Mr. Roy Chowdhury in the further alternative submitted that the plaintiff cannot now be allowed to contend that it is a representative suit for the plaintiff had proceeded on the basis that it was an ordinary suit as is evidenced by the fact that the plaintiff made applications on more tnan one occasion for bringing the heirs and legal representatives of the deceased defendants on the record.
29. Mr. Boy Chowdhury in the alternative indicated that Nawab Habibullah, a disqualified proprietor who could not represent even himself except through the Manager of the Court of Wards could not represent his co-sharers and hence the suit cannot and is not a representative suit under Order 1 Rule 8 of the Civil Procedure Code.
30. Mr. Roy Chowdhury further indicated that the Nawab Habibullah died on the 20th day of November, 1958, so that more than three years have elapsed since his death. Hence, an application for fresh appointment is barred under Article 181 of the Limitation Act.
31. Mr. Majumdar in the alternative submitted that it is immaterial whether the fresh appointment is made or not or whether it is a representative suit or not, fot all the co-sharers of the Dacca Nawab Estate have been made at one stage or another parties in the suit.
32. In the result, I direct that the suit to appear in the list as and from Monday next after the continuing part-heard suit in the list of 'other suits', if there be any; otherwise at the top 'of the 'other suits'.
33. Costs of this application will be costs in the suit.