1. Heard Mr. DN Choudhury, learned counsel for the petitioners and Mr. BK Goswami, learned counsel for the opposite parties.,
2. The first point has to be decided is that whether the Title Suit No. 35 of 1975 pending before the learned Assistant District Judge No. 2, Guwahati has abated in view of death of original defendant Nos. 1 and 5 and substituted No. 5 (C).
3. The present opposite parties filed the title suit which was dismissed. The appeal filed before the learned District Judge, Guwahati was allowed. When the appeal was pending a petition was a filed on 15.5.1979 by the plaintiffs stating that the original defendant No. 1 died on 27.4.1979 and defendant No, 5 died on 10.4.1979 and prayed that their legal heirs may be substituted. The names of the legal heirs were stated in para 4 of the said petition. By order dated 23.2.1980 the learned District Judge, Guwahati by his order passed in Title Appeal No. 13 of 1978 it was noted that the legal representatives of defendantrespondent No. 1 did not file any objection against the prayer for substitution and accordingly allowed the prayer. Regarding legal heirs of respondent No. 5 time was granted to file objection and the next date was fixed on 22.2.1980 and on the next date i.e. on 22.9.1980 no objection was filed and accordingly, the prayer for substitution of the legal heirs of die original defendant No. 5 was allowed. It was also recorded that no notice was necessary as the said legal heirs were before the Court. But the memo of appeal before the learned lower appellate Court was not corrected. The appeal was dismissed. The second appeal filed by the plaintiffs before this Court which was numbered as Second Appeal No. 177 of 1982 which was disposed of on 25.9.1989 remanded to the learned trial Court for trial afresh. From the order dated 26.2.1984 passed by this Court in the above second appeal it appears that another petition was filed before this Court for substitution on the death of respondents Nos. 1 and 5. After hearing the learned counsel, the amendment petition was allowed and office was directed to correct the memo of appeal by inserting the names of the legel heirs of the defendants respondents Nos. 1 and 5. During the pendency of the second appeal the substituted legal heirs of defendantrespondent No. 5 namely, Md. Amin, who was impleaded as respondent No. 5 (C) died and a petition for substitution was also filed. By order dated 9.1.1989 passed in Misc. Case No. 141 of 1988 arising out of the above Second Appeal No. 117 of 1982 this Court directed that all the 5 legal representatives of late Md. Aroin i.e. respondent No. 5 (C) mentioned in the petition be substituted as the respondents Nos. 5 (C) (1) to (5) in the above second appeal and office was directed to correct the memo of appeal
4. After the matter was remanded back to the learned trial Court, the legal heirs of original defendant No.5 filed a petition on 19.8.1991 praying that the suit may bs dismissed due to abatement under Order 22 Rule 4 CPC. This petition was file on the ground that after death of de fendant No. 5, his legal heirs were not brought on record.
5. By the impugned order dated 8.4.1992 passed by the learned Assistant District Judge No. 2 in the above Title Suit no 35 of 1975, the Court held that suit has riot abated and hence, the present petition.
6. The first Contention of Mr. DN Choudhury, learned counsel for the petitioners, is that after the orders allowing substitution, no steps were taken for correction of memo of appeal as well as the plaint. According to the learned counsel even after the above Order was passed by the learned District Judge, the plaintiffs filed the appeal before this. Court and; in th* memo of appeal legal representatives were not shown.
7. The only order that is necessary after death of a person is the order for substitution of legal heirs and correction of the memo of appeal or tbe plaint is ministerial act and it has to be done by the office. The plaintiffs or defendants who who are parties ia a suit have nothing to do after the order is passed. If the prayer for substitution, is granted even in appeal or any interlocutory matter, such substitution is good for all other parts of the proceeding in the suit and in other words, after substitution is allowed the memo of appeal, the pleadings; and the decree shall have to be corrected by office and such correction is not a judicial function. Merely because, this ministerial part has not been performed it cannot be said that the suit has abated. In the case in hand, one added point in favour of be opposite parties is that there was direction given by this Court to correct the memo of appeal but unfortunately it was not done, for which the plaintiffs cannot be held responsible. My attention has been drawn to the fact that the memo of appeal before this Court was subsequently corrected.;
8 Mr. Choudhury, has drawn my attention to the decision of the Calcutta High Court in Mahadev Prasad Khemka vs. Hanuman Seba Trust, reported in AIR 1954 Calcutta 16 where it was held that it was a duty of trje plaintiffs to correct the memo of appeal as well as the plaint. I find from the fact pjT tjie case that the petition was filed in the execution proceeding under Order 21 Rule 22 CPC and so this decision is not helpful for the present petitioners. On the other hand, from para 8 of the decision, I find that reference has been made to the decision in Brij Inder Singh, vs. Kanshiram, AIR 1917 Privy Council 195 where dealings with a case in which a substitution had been made in an interlocutory matter in the course of a suit, and it was observed that substitution in one part of the case was a good substitution for.all parts. The above decision of Privy Council supports the case of the1 present opposite parties.
9. Mr. Choudhury, has further urged that atleast the Court may send back the entire matter as the petition dated 19.8.1991 was not specifically disposed of lam unable to accept this contention, as by remanding the matter no purposes would be served as the suit has not abated and the learned Court below has rightly passed the order in favour of the present opposite parties.
10. For the reasons stated above, I do not find and merit in the present petition and accordingly the petition is dismissed and the stay order stands vacated, the learned Court below is directed to correct the plaint, the memo of appeal and also the decree and thereafter shall proceed with the matter as per law laid down by this Court in the above second appeal. No costs.
