1. This Rule was issued at the instance of the pltf. of Title Suit No. 39 of 1944 of the Subordinate Judge of Nadia.
2. The facts briefly are these : The suit was instituted on 10-7-1944 against one Surendra Nath Biswas. On 15-9-1944 all proceedings in the suit were stayed Under Section 34, Bengal Agricultural Debtors Act. On 22-10-1946 Surendra died leaving behind him as his heirs his three sons Sudhansu, Himanshu & Biranshu. On 27-7-1949 the stay order under the Bengal Agricultural Debtors Act, was vacated & prior to that on 4-9-1947 an appln. was made by the petnr. for substituting the heirs of Surendra, namely, Sudhansu, Himansu & Biransu in the place of Surendra. That appln. remained pending. On 27-10-1947 Biranshu died leaving behind him as his heir his widow Santirani. On 27-10 1949 the petnr. filed an appln. for substitution of Santirani as legal representative of Biransu & for the amendment of the plaint after such substitution. To this appln. an objection was filed by the defts. in the suit who are the opposite parties in the present Rule. Pending the disposal of that appln. a fresh appln. was filed by the petnr. for setting aside the abatement of the suit as against Biransu. To this also there was an objection filed by the opposite parties. Both these applns. were heard together & on 13-3-1950 the learned Subordinate Judge substituted Sudhansu, Himansu & Biransu as heirs of Surendra, but the Ct. refused to substitute Santirani as the heir of Biransu. There were two appeals. One by the opposite parties by which they challenged the decision of the learned Subordinate Judge setting aside the abatement as against Sudhansu, Himansu & Biransu. Against the order refusing to set aside the abatement of the suit as against Biransu the petnr. appealed. Both the appeals were dismissed.
3. The opposite parties took no further steps but the petnr. has moved this Ct. Under Section 115, Civil P. C against the decision of the learned Dist. J., refusing to set aside the abatement against Biransu. The learned Judge has held that the petnr. knew of the death of Biransu & did not apply for substitution of Biranshu's heir within 90 days of such knowledge. The Ct. held that the petnr. was late by one day even if the period of stay order is excluded from consideration.
4. Various arguments were urged before us on behalf of the petnr. & the opposite parties, but with all respect it seems to us that the parties as well as the Cts. below have entirely misconceived the actual position. The suit could not have abated as against Biransu as he was not a party to the suit at any time. He died pending the disposal of the appln. to substitute him & his two brothers in the place of their father. Now, as he was never a deft. at any time, Article 177, Limitation Act, cannot apply. That Article says that the period of limitation for substituting the legal representatives of a deceased deft. is 90 days from the date of the death of the deceased deft. As Biransu was not a deft. this Article can have no application. Further, if one looks to the provisions of Order 32, Rule 4, Civil P. C. the question of substitution only arises under that rule in the case of a deft. dying. Therefore, Order 22, Rule 4 has no application at all. The appln. for the substitution of the heir of Biransu was really for all purposes an appln. not for substitution but for amendment of the original appln. for substitution of the heirs of Surendra by putting in the name of Santirani instead of Biransu, Biransu having died before the appln. could be heard. That the appln. should have been so treated was adumbrated in the trial Ct. but this contention was lightly brushed aside & it seems that the point was not discussed in the appeal. In this Ct. also learned Advocate appearing for the petnr. did not raise this point either in his petn. or in his argument but it seems to us that this was the point for consideration & we put it to learned Advocate appearing for the opposite parties who has addressed his arguments on it. One of his arguments is that Biransu should be consd. as a deft. as soon as the appln for substitution of the heirs of Surendra was made although he was not actually made a deft. at that time; in other words, he said that Biransu was a notional deft. We are unable to accept this contention. Biransu was not a deft. & in construing the law of limitation we must confine ourselves strictly within the terms of the Limitation Act & not enlarge the scope of the Act by introducing 'notional' deft. in the place of the word 'deft.' As Biransu was not a deft. there could be no substitution & as we have said before, the appln. for substitution should have been treated as an appln. for amendment of the first appln. for the substitution of the heirs of Surendra. If the appln. be treated as such, then the period of limitation would be three years from the date of death of Biransu according to Article 181, Limitation Act, which provides for the period of limitation for appln. not otherwise dealt with by the Act. The appln. was well within that time, & we can see no reason why we should not set aside the order passed by the Ct. below when it is erroneous & amounts to a refusal to exercise jurisdiction vested in it.
5. Learned Advocate appearing for the opposite parties contended that even if it be held that the Ct. below decided the question of limitation wrongly inasmuch as the Ct. had jurisdiction to decide the question of limitation, a wrong decision of the question would not attract the operation of Section 115, Civil P. C. & in support of this he cited a decision of mine sitting singly. That decision certainly supports his contention, but that decision was a wrong one. The position has been made quite clear by the Judicial Committee in the case of Joy Chand Lal v. Kamalaksha, 76 I. A. 131. I would refer in this connection to a passage at p. 142, where their Lordships say
'if the erroneous decision results in the subordinate Ct. exercise a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revn. arises under Sub-section (a) or Sub-section (b), & Sub-section (c) can be ignored.'
They go on to approve of the decision of Babu Bam v. Munna Lal, 49 ALL. 454 & point out that the H. C. was right in exercising its powers Under Section 115, Civil P.C. where a subordinate Ct. by its own erroneous decision on a point of limitation invested itself with a jurisdiction which in law it did not possess.
6. In this view of the law we think that this Ct. has the power to interfere because in the present case the Ct. refused the appln. of the pltf. which was virtually an appln, for amendment on the erroneous ground that the appln. was barred by Article 177, Limitation Act.
7. Apart from the error regarding limitation we are of opinion that the Ct. below misconceived the entire position by thinking that the heir of Biransu should be substituted in his place. As pointed out above the question of substituting the heir of Biransu could not possibly arise as Biransu was not a deft. & Order 22, Rule 4, Civil P. C. did not apply. By this error the Ct. failed to exercise the jurisdiction vested in it & therefore Section 115 would be attracted.
8 As regards the question of costs we are of opinion that the pltf. should pay the costs throughout as the confusion has arisen by reason of the faulty appln. made by him in the Ct. below. The Rule is made absolute.
K.C. Chunder, J.
9. I agree.