Fletcher, J.:— These are two appeals both by the Maharaja of Burdwan arising out of two suits brought by him for recovery of rent against the tenants. The first suit was brought to recover the rent of 1312 to 1315 B.S The Maharaja instituted that suit, but after the institution, he found that he had instituted it against a man who was already dead and thereupon he applied to substitute the heirs of the dead man on the record as defendants. The learned Judge of the Court below found that he was not entitled to do so and he relied upon certain authorities — one of this Court and another of the Madras High Court. In my opinion the learned Subordinate Judge came to a correct conclusion when he found that the provisions as to the substitution of the heirs of a deceased defendant as parties to the suit in his place applied only to cases where the original defendant was alive at the date of the institution of the suit. It seems to me that the case of Mohun Chand Koondoo v. Azim Gazee Chowkidar . [1869] 12 W.R 45 and the case of Veerappa Chetty v. Tindal Ponnen . [1903] 31 Mad. 86, are sufficient authorities to establish this. The learned Judge therefore in my opinion came to a correct conclusion in the case out of which Appaal No. 557 of 1909 arises. That appeal therefore fails and must be dismissed with costs.
2. In the second case, namely, Appeal No. 101 of 1911, the facts appear to be these: After the dismissal of the suit to which Appeal No. 557 of 1909 relates, the Maharaja, first of all, preferred an appeal to this Court, that is, Appeal No. 557 of 1909, and then he instituted another suit against the defendants to recover the rent of the years 1313 to 1316. The learned Judge came to the conclusion that the suit, so far as it relates to the years 1313 to 1315, ought to be dismissed at present.
3. What the Judge apparently meant was that the suit ought to be dismissed as it was not maintainable. In that view I think the learned Judge went too far, because under Section 10 of the CPC, the duty of the learned Judge was to stay the proceedings until after the determination of Appeal No. 557 of 1909, and I am of opinion that on that ground we ought to reverse the decision of the learned Subordinate Judge. Now that Appeal No. 557 of 1909 has been disposed of, the suit to which the present appeal relates must be sent back to the lower Court to be retried by the learned Subordinate Judge. Costs of this appeal and of the suit in the lower Court will abide the result of the retrial.
Richardson, J.:— I agree.
No. 188 of 1911.
4. Under the provisions of O. 2, R. 6 of the CPC we direct the lower Court not to dispose of the liability of the four annas share of Hat Sandhya Bazar until it disposes of the claim for recovery of rent from the Mitra tenants and it is only after it disposes of that matter that it will proceed to consider and determine the liability of the various parties who now own the four annas share in the bazar as to in what shares or proportion they are liable to make good to the Maharaja the amount of the rent in arrears.
5. Costs will abide the result of the decision in the lower Court. We assess the hearingfee at two gold mohurs in this case.
6. The parties will be at liberty to adduce fresh evidence.
V.B/R.K
7. Order accordingly.