Sen, J.:— This Rule was issued at the instance of the Plaintiff of Title Suit No. 39 of 1944 of the Subordinate Judge of Nadia.
2. The facts briefly are these: The suit was instituted on the 10th of July, 1944, against one Surendra Nath Biswas.
3. On the 15th of September, 1944, all proceedings in the suit were stayed under sec. 34 of the Bengal Agricultural Debtors Act. On the 22nd of October, 1946, Surendra died leaving behind him as his heirs his three sons Sudhansu, Himanshu and Biranshu. On the 27th of July, 1949, the stay order under the Bengal Agricultural Debtors Act was vacated and prior to that on the 4th of September, 1947, an application was made by the Petitioner for substituting the heirs of Surendra, namely, Sudhansu, Himansu and Biransu in the place of Surendra. That application remained pending. On the 27th of October, 1947, Biransu died leaving behind him as his heir his widow Santirani. On the 27th of October, 1949, the Petitioner filed an application for substitution of Santirani as legal representative of Biransu and for the amendment of the plaint after such substitution. To this application an objection was filed by the Defendants in the suit who are the Opposite Parties in the present Rule. Pending the disposal of that application a fresh application was filed by the Petitioner 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 applications were heard together and on the 13th of March, 1950, the learned Subordinate Judge substituted Sudhansu, Himansu and Biransu as heirs of Surendra, but the Court 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 and Biransu. Against the order refusing to set aside the abatement of the suit as against Biransu the Petitioner appealed. Both the appeals were dismissed.
4. The Opposite Parties took no further steps but the Petitioner has moved this Court under sec. 115 of the Code of Civil Procedure against the decision of the learned District Judge refusing to set aside the abatement against Biransu.
5. The learned Judge has held that the Petitioner knew of the death of Biransu and did not apply for substitution of Biransu's heir within 90 days of such knowledge. The Court held that the Petitioner was late by one day even if the period of stay order is excluded from consideration.
6. Various arguments were urged before us on behalf of the Petitioner and the Opposite Parties, but with all respect it seems to us that the parties as well as the Courts 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 application to substitute him and his two brothers in the place of their father. Now, as he was never a Defendant at any time, Art. 177 of the Indian Limitation Act cannot apply. That article says that the period of limitation for substituting the legal representatives of a deceased Defendant is 90 days from the date of the death of the deceased Defendant. As Biransu was not a Defendant, this article can have no application. Further, if one looks to the provisions of Or. 22, r. 4 of the Code of Civil Procedure the question of substitution only arises under that rule in the case of a Defendant dying. Therefore, Or. 22, r. 4 has no application at all. The application for the substitution of the heir of Biransu was really for all purposes an application not for substitution but for amendment of the original application for substitution of the heirs of Surendra by putting in the name of Santirani instead of Biransu, Biransu having died before the application could be heard. That the application should have been so treated was adumbrated in the trial Court but this contention was lightly brushed aside and it seems that the point was not discussed in the appeal. In this Court also learned Advocate appearing for the Petitioner did not raise this point either in his petition or in his argument but it seems to us that this was the point for consideration and 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 considered as a Defendant as soon as the application for substitution of the heirs of Surendra was made although he was not actually made a Defendant at that time; in other words he said that Biransu was a national Defendant. We are unable to accept this contention. Biransu was not a Defendant and in construing the law of limitation we must confine ourselves strictly within the terms of the Limitation Act and not enlarge the scope of the Act by introducing notional Defendant in the place of the word ‘Defendant’. As Biransu was not a Defendant, there could be no substitution and, as we have said before the application for substitution should have been treated as an application for amendment of the first application for the substitution of the heirs of Surendra. If the application be treated as such, then the period of limitation would be three years from the date of death of Biransu according to Art. 181 of the Indian Limitation Act which provides for the period of limitation for applications not otherwise dealt with by the Act. The application was well within that time, and we can see no reason why we should not set aside the order passed by the Court below when it is erroneous and amounts to a refusal to exercise jurisdiction vested in it.
7. Learned Advocate appearing for the Opposite Parties contended that even if it be held that the Court below decided the question of limitation wrongly inasmuch as the Court had jurisdiction to decide the question of limitation, a wrong decision of the question would not attract the operation of sec. 115 of the Code of Civil Procedure and 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 Babu v. Kamalaksha Chaudhury(1). I would refer in this connection to a passage at page 142 where their Lordships say: “if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises, under sub-sec. (a) or sub-sec. (b) and sub-sec. (c) can be ignored.” They go on to approve of the decision of Babu Ram v. Manna Lal(2) and point out that the High Court was right in exercising its powers under sec. 115 of the Code of Civil Procedure where a subordinate Court by its own erroneous decision on a point of limitation invested itself with a jurisdiction which in law it did not possess.
8. In this view of the law we think that this Court has the power to interfere because in the present case the Court refused the application of the Plaintiff which was virtually an application for amendment on the erroneous ground that the application was barred by Art. 177 of the Indian Limitation Act.
9. Apart from the error regarding limitation we are opinion that the Court 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 Defendant and Or. 22, r. 4 of the Code of Civil Procedure did not apply. By this error the Court failed to exercise the jurisdiction vested in it and, therefore, sec. 115 would be attracted.
10. As regards the question of costs we are of opinion that the Plaintiff should pay the costs throughout as the confusion has arisen by reason of the faulty application made by him in the Court below.
11. The Rule is made absolute.
Chunder, J.:— I agree.