| Citation(s) |
|---|
| 1957 SLG 4041 = 1957 SLD 4041 = 1957 PLD 367 |
Dacca High Court
Civil Rule No. 815 of 1955, decided on 3rd December, 1955 against the order, dated the 18th June, 1955, of the Subordi nate Judge, 1st Court, Mymensingh, in Partition Suit No. 81 of 1953.
Presented By: Amin Ahmed, A. C. J. and Rahman, J
D. C. Bhattacharjee for Petitioner. Muhammad Tafazzal Hossain Khan for Opposite-Parties.
Civil Rule No. 815 of 1955, decided on 3rd December, 1955 against the order, dated the 18th June, 1955, of the Subordi nate Judge, 1st Court, Mymensingh, in Partition Suit No. 81 of 1953.
Presented By: Amin Ahmed, A. C. J. and Rahman, J
D. C. Bhattacharjee for Petitioner. Muhammad Tafazzal Hossain Khan for Opposite-Parties.
SYED ALI BHUIYAN ----Defendant---Petitioner
VERSUS
MUHAMMAD JAMSHED ALI KAZI and another Plaintiff-Opposite-Parties
Law: Civil Procedure Code (V of 1908)
Section: 4(4)
Civil Procedure Code (V of 1908), O. XXII, r. 4 (4) (Dacca amendment)-Application for exemption from sub stitution of legal representative of deceased defendant whether and when can be made-Practice of Dacca High Court. An application under Order XXII, rule 4 (4) (Dacca amendment) of the Code of Civil Procedure for exemption from substituting the legal representatives of a deceased defendant is to be made before the suit abates as against such defendant. Sree Sree Sankari Prasad Singh Deo v. Kanai Lal Roy and others 52 C W N 599; Tamiruddin Sakhidar and others v. Raufannessa Bibi and others S A 1778 of 1944 unreported; Barimulla Mondal v. Gazi Rahman Mondal and others F A 59 of 1948 (Dacca); Nani Gopal Mukherji v. Panchanan Mukherji and others 59 C W N 304; Nanu Khan and others Moktarerma and others S A 454 of 1950 (Dacca) and Lakshmanan Chettiar and another v. Chidambaram Chettiar and another s A I R 1935 Mad. 236 ref. JUDGMENT AMIN AHMED, A. C. J. This application in revision under section 115 of the Code of Civil Procedure is directed against an order of the Subordinate Judge, Mymensingh, under Order XXII, rule 4 (4) of the Code of Civil Procedure, exempting the plaintiffs from substituting the heirs of the deceased respondent No. 48. The only point for consideration in this case is whether the Court below acted illegally and with material irregularity in exempting the plaintiffs from substituting the heirs of the deceased defendant No. 48 after the period of limitation of 90 days for substitution of heirs expired. Mr. Bhattacherjee who appears for the defendant petitioner has strongly relied on the provisions of sub-rules (3, and (4) of Rule 4 of Order XXII of the Code of Civil Procedure. Order XXII, rule 4, runs thus: "4 (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and…