1. This Rule was issued calling upon the opposite parties to show cause why the decree of this Court made by Mr. Justice Newbould and myself on 6th July 1925 should not be vacated or such other order made as might be deemed fit and proper. The rule came before my learned brothers Cuming and Mukerji, JJ., who in their order dated 17th February last expressed their opinion that it was not open to them to vacate the decree, and that the proper procedure to follow in the circumstances was the procedure described by Mr. Justice Asutosh Mookerjee in the case of Abdul Aziz v. Lakhmi Chandra Mazumdar A.I.R. 1923 Cal. 676, namely that the case should be placed before me for orders.
2. At the outset of the argument before me Mr. Chakravarti, on behalf of the opposite parties raised the question whether I had jurisdiction to hear the Rule without an order from the Chief Justice, and suggested that the formal orders of the Chief Justice should be obtained. The matter was accordingly referred to the learned Chief Justice who intimated that there is no need of any further order. It may be taken therefore that the order passed by Cuming and Mukerji, JJ., is correct and that there is no substance in the objection as to my jurisdiction.
3. The facts out of which this Rule has arisen are shortly these : The petitioners brought a suit for recovery of khas possession of certain plots of land against a number of defendants, one of whom was named Dolegobinda. That suit was dismissed by the Munsif on 13th May 1922. The plaintiffs appealed to the District Judge and on 31st October 1922 the appeal was decreed in favour of the plaintiffs. On 20th December 1922 a second appeal was filed in this Court by the defendants among whom was the aforementioned Dolegobinda. On 1st October 1923 Dolegobinda died. No steps were, however, taken to bring his heirs on the record in his place, and the fact of his death was not known to this Court at the time of the hearing of the appeal. The result of the appeal to this Court was that the case was remanded to the lower Court for re-hearing. Thereafter the appeal was reheard by the District Judge on 17th July 1926 and decided in favour of the defendants. The plaintiffs then filed a second appeal to this Court making Dolegobinda a party. Having now, however, as they allege, discovered that Dolegobinda died before the remand order by this Court, the plaintiffs applied for and obtained this Rule on the ground already stated.
4. It has been urged on behalf of the petitioners, that the decree being in favour of a dead person, to wit, the said deceased Dolegobinda, is a nullity, and that the appeal was improperly constituted.
5. On behalf of the opposite parties Mr. Chakravarti urged three points: firstly, that the application is misconceived, and that the decree passed by a Division Bench of this Court can only be set aside or altered on an application for review; secondly, that the petitioners were well aware of the fact of Dolegobinda's death on 12th January 1925, and that notwithstanding that knowledge when after the remand they were appellants in the Court of appeal below they took no steps for substitution; third and lastly, that the matter is now pending in second appeal No. 2232 of 1926 filed in this Court on 8th November 1926, in which the heirs of Dolegobinda have been added as respondents, and that that being so any question as to the effect of the remand by this Court can be decided in that appeal.
6. In my opinion these contentions on behalf of the opposite parties are well founded and must prevail. In the first place the matter is one which must be dealt with on the footing that it comes under Order 47, Rule 5, Civil P.C. As an application for review it is hopelessly out of time, and inasmuch as the petitioners were well aware even before the hearing of the second appeal in July 1925 that Dolegobinda was dead, and that knowledge has not, as they allege, only recently come to them, there can be no question of extension of the period of limitation. When the second appeal was before this Court it was no doubt the duty of the defendants-appellants to make the substitution, but that could not, as it seems to be, absolve the plaintiffs from the duty of bringing to the knowledge of the Court the fact, which was known to them, that one of the defendants had died, so as to secure proper representation of the parties in the appeal.
7. As to the second contention : it is conclusively established by the affidavit in reply that the petitioners were all along fully aware of the death of Dolegobinda. On 12th January 1925, after they had obtained their decree in the lower appellate Court and during the pendency of the second appeal (No. 481 of 1923) in this Court they instituted a suit for mesne profits in the Court of the Subordinate Judge, of Bankura making Bipin Mohatani defendant 17 in the said suit on the death of Dolegobinda Mahto, as his sole heir and widow. It is idle for them, therefore, now to pretend they were not aware of this fact.
8. Finally as Dolegobinda's heirs have been added as respondents in the second appeal (No. 2232 of 1926) now pending in this Court any question as to the effect of the remand by this Court can be if necessary considered in that appeal. The learned vakil for the petitioners conceded that this is so.
9. For the reasons stated I am of opinion that this application is misconceived and wholly devoid of any merits. The Rule is accordingly discharged with costs which are assessed at three gold mohurs.