A suit filed against a dead person can be amended by substituting the legal representatives of the deceased defendant, and the suit will be treated as instituted on the date of the application for amendment.

GANGADHARA RAO, J.

( 1 ) THIS Civil Revision Petition has come up before us on a reference made by our learned brother Justice Obul Reddi (as he then was) on the ground that the question of law involved in this case is of importance which should be decided by a Bench.

( 2 ) THE plaintiff is the petitioner, he filed a Small Causes Suit No. 1109 of 1970 in the Court of the Additional Chief Judge, City Small Causes Court, Hyderabad against one Ghulam Mohiuddin the 1st defendant alleging as follows: The defendant borrowed from him Rs. 750 on 30-12-1965 and executed a promissory note and also a receipt in his favour. Subsequently the defendant paid Rs. 25 on 15-11-1965 and made an endorsement of payment on the back of the promissory note. He was still due in a sum of Rs. 725 which he did not pay in spite of repeated demands. Hence the suit was filed for recovery of Rs. 725 on 16-11-1970. Subsequently when he came to know that the sole defendant died on 12-11-1970 i. e. , four days before the suit, he fled I. A. No. 1515/70 on 10-12-1970 to bring the legal representatives of the deceased defendant as defendants 2 to 5 on record and it was allowed by the lower court on 1-4-1971. Defendants 2 to 5 in their written statement denied the truth of the suit, and contended that the suit was not maintainable since it was filed against a dead person and also there are three more legal representatives of the defendant who were not impleaded and hence the suit was bad for non-joinder of parties. They further contended that the plaintiff is a money lender and since she did not possess a licence, she cannot maintain the suit under Section 9 (2) of the Hyderabad Money Lenders Act.

( 3 ) THE lower court while holding that the original debt and part payment were true, dismissed the suit on these grounds. Firstly, the suit was originally instituted against a dead person. Therefore, it was void arbitrary into and it could not be continued subsequently against the legal representatives of the deceased defendant. Secondly that two more daughters and son of the deceased defendant were not impleaded as parties and, therefore, the suit was bad for non-joinder of necessary parties. Thirdly, the plaintiff was a money lender and since she did not possess a licence, she could not file the suit.

( 4 ) THE learned counsel for the petitioner Md. Mukarramuddin in a neat and brief argument has assailed the findings of the lower court. He contended that though originally the suit was filed against a dead person, still his legal representatives were brought on record before the period of limitation expired, and, therefore, the suit is maintainable against defendants 2 to 5. In this connection, he relied upon Section 153, Civil Procedure Code and the decisions reported in K. Ismail v. Pavu Amma, AIR 1955 Mad 644 C. Raju v. D. D. Italia, AIR 1961 Andh Pra 230 and Jagarnath v. Commissioners of Buxar Municipality, AIR 1961 Pat 480.

( 5 ) SECTION 153, Civil P. C. says :"the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. "this section is new. It confers a general power on the court to amend the defects and errors in any proceeding in a suit and to make all necessary amendments for the purpose of determining the real question or issue between the parties in the suit. So when a suit is filed against a dead person the plaint can be amended by substituting the legal representatives of the deceased defendant, but the suit should be treated as instituted on the date of the application for amendment. If on that date the suit is not barred by limitation it will be in effect a suit validly instituted against the legal representatives of the deceased defendant. In the case reported in K. Ismail v. Pavu Amma, AIR 1955 Mad 644 the facts are that a su

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