Krishnadas Mondal vs Sarbeswar Saran Deb

Binayak Nath Banerjee, J.—One Monohardas Mohanto, as guddinashin of an Asthal at Raiganj in the district of Burdwan, instituted a suit in the Second Court of the Munsif at Burdwan, being Title Suit No. 202 of 1958, against the Petitioner and the opposite party No. 2 claiming accounts and other reliefs. On June 25, 1959, the suit was decreed in a preliminary form in favour of the said Monohardas Mohanto. The suit remained pending for the purpose of a final decree. On January 1, 1960, the said Monohardas Mohanto died, but no application for substitution of his legal representative was made within ninety days. On September 3, 1960, opposite party No. 1, Sarbeswar Saran Deb, made an application in the aforesaid title suit, under Order 22, Rule 10 of the Code of Civil Procedure, stating that the interest of the Plaintiff had devolved upon him, under a deed of nomination, and he should be brought on the record, as the Plaintiff in place of the deceased Plaintiff.

The trial Court allowed the application. The Defendant opposite party appealed. The appeal was dismissed. Against the appellate order, Defendant No. 1, the Petitioner, obtained this Rule.

It appears from the appellate judgment that Sarbeswar Saran Deb claimed title to the gaddi of the Asthal by nomination under a registered deed. The interest in the gaddi thus devolved upon him under a document. Mr. Hari Prasonna Mukherjee, Learned Counsel for the Petitioner, did not dispute at this stage that the nomination had not been properly made. Mr. Mukherjee, however, contended that the suit abated, because there had been no substitution of the Plaintiff made within ninety days. This argument proceeds on the theory that the limitation prescribed for substitution of the heir of the sole Plaintiff should also be imported in cases where an application is made under Order 22, Rule 10 of the Code of Civil Procedure. I am unable to come to this sort of conclusion. If Sarbeswar Saran Deb was applying to be brought on the record in place of the deceased Plaintiff on the ground of devolution of interest, his right to apply was not barred by limitation.

Then again, there was a preliminary decree already passed. After a decree has once been made in a suit in a preliminary form, the right to sue merges in the decree and no question of the abatement of the suit thereafter arises.

Lastly, in case of substitution of a deceased Mohanto, it is doubtful whether Order 22, Rules 3 and 4 will apply or whether the appropriate provision will be Order 22, Rule 10 of the Code. I proceed on the theory that Order 22, Rule 10 will apply and the order passed by the learned Judge of the Court below merits no interference by this Court.

I, therefore, discharge this Rule with costs, hearing fee being assessed at two gold mohurs.