S.K. Hazra, J.
1. In this matter on January 14, 1972 an application was made by the plaintiff for recording the death of defendant No. 1 Harilal N. Shukla and for substitution of his heirs in his place. The defendant No. 2 appeared through Ms advocate before me. By consent, order was passed in terms of prayers in the petition. One of the prayers in the petition was prayer (f); wherein, the petitioner prayed that a fresh writ of summons be issued for service on the substituted defendants. By consent, order was passed in terms of prayer (f) of the writ of summons. Thereafter at the time of settlement of the draft, a question arose as to whether the fresh writ of summons should be served on the substituted defendants. The matter was mentioned before me on March 1, 1972, on behalf of the plaintiff, who contended that a fresh writ of summons need not be issued but only the above order may be served on the substituted defendants. Thereafter, I directed that the Registrar-in-Insolvency may submit a note on tine point as to the practice followed in such matters.
2. Mr. S. K. Mitra. Registrar-In-Insolvency, has submitted before me a well-considered note on March 7. 1972. In the note prepared by the Registrar-in-Insolvency it is stated as follows :--
3. An order for substitution in place of a deceased defendant is made under Order XXII, Rule 4 (1) of the Code of Civil Procedure. Rule 4 (21 of the said Order XXII runs as follows :--
'Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.'
4. The substituted party has been given the right to make any defence appropriate to his character as legal representative of the deceased defendant. So, the substituted party is entitled to have notice of substitution, but the question arises as to the mode of giving such notice. Would it be by issue of fresh writ of summons or by serving its order and directing that its substituted defendant may make defence appropriate to his character as legal representative of the deceased defendant
5. It is well settled that when a party to a suit dies, his legal representative is substituted in order that the suit might proceed and a decision be arrived at. It is the original parties' rights and disabilities that have to be considered and not those of the legal representative (See AIR 1924 Lah 45, Gulli v. Sawan). Defence not open to the defendant, if alive, cannot be raised by his legal representative in that character (See AIR 1944 Lah 473, Sadhu Singh v. Firm Kahan Singh). A person substituted as legal representative of a deceased party must adopt the pleadings filed by the deceased party. He cannot raise a new point inconsistent with the pleadings of the deceased. The legal representative of a deceased cannot set up his own claims or rights in the case though he may do so in any other proceedings (See AIR 1930 Mad 593. Muhammad Naina Maracair v. Ummania Kani Animal). All that the legal representative can, therefore, do is to take up the suit at the stage at which it was left when the original party dies and to continue it. It follows, therefore, that if any defence to the suit was not open to the deceased defendant, his legal representative would not be at liberty to plead that defence.
6. If a writ of summons is served on the substituted party, the writ itself will give the party a right to enter appearance in the suit and to file his written statement within the time specified therein. In the instant case, the deceased defendant having already filed his written statement jointly with the defendant No. 1, his legal representative cannot be permitted to make out a new case afresh in another written statement at this stage. It is to be noted in this connection, that the case of addition of a defendant is different. Addition of defendant may be made under Order I. Rule 10 (iv) which provides as follows :--
'Whether a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.'
This rule specifically provides for service of writ of summons on the parties added, but Order XXII, Rule 4 of the Code of Civil Procedure, provides for the procedure in case of death of one of the several defendants or of the sole defendant. Order XXII. Rule 4 is worded differently. This Order says, that any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. It is the only right that a substituted defendant has, namely, that he can make a defence appropriate to his character as a legal representative of the deceased defendant.
7. In the premises, I think that the prayer in paragraph (f) of the petition, namely, fresh writ of summons should be issued for service on the substituted defendant cannot be granted. I recall the said order for issue of fresh writ of summons for service on the substituted defendants and I order that this order for substitution may be served on the substituted defendants. Leave is given to the substituted defendants to enter appearance and to make any defence appropriate to their character as legal representatives of the deceased defendant. Leave is given to the substituted defendants to file additional written statement within 10 days from the date of the service of this order upon them. Service on the substituted defendants may be made by registered post. The order dated January 14, 1971 is modified as above.