JUDGMENT- P.S. PATANKAR, J.:---There is one religious trust by name `Bhairav-Dev situate at village Gulumb, Taluka Wai, District Satara. The appellants are the beneficiaries thereof. The respondents 1 to 5, and 10 to 12 are the original trustees of the said trust. The said trust is registered under the Bombay Public Trusts Act, 1950 (hereinafter referred to as `the Trust Act). The trustees i.e. respondents 1 to 5 sold three survey numbers admeasuring about 81/2 acres to respondents 6 to 9. The said sales came to be challenged on behalf of the appellants. The appellants sought consent under section 51 of the Trust Act and the Charity Commissioner granted the same on 24-1-1969. The appellants therefore filed the suit in the District Court at Satara inter alia praying that the properties which were sold to respondents 6 to 9 be recovered and the sales which are effected in their favour be declared as invalid.

2. The respondent No. 4 died on 4-7-1973. He was a hereditary trustee. A change report was submitted by the other trustees recommending the name of respondent No. 14 who was the son of respondent No. 4. On 12-10-1973, the Charity Commissioner granted recognition to respondent No. 14. Thereafter on 2-4-74 the appellants filed an application to bring the respondent No. 14 on record in the place of respondent No. 14. The said application came to be intially granted on 5-4-1974 by the learned Judge and he was allowed to be joined as defendant. However, a contention came to be raised on behalf of the respondent that the entire suit abated as there was failure on the part of the appellants to bring the legal representatives of the deceased respondent No. 4 i.e. (defendant No. 4) on record within the prescribed period and the suit was not tenable in the absence of the consent of the Charity Commissioner to add respondent No. 14 under the provisions of section 51 of the Trust Act.

3. The learned Assistant Judge, Satara, framed two issues as preliminary. He came to the conclusion that it was necessary to bring the legal representatives of the deceased respondent No. 4 (i.e. defendant No. 4) within 90 days of his death. The same has not been done and, therefore, the entire suit abated. He also held that the suit filed by the appellants was not tenable against the respondent No. 14 in the absence of the consent from the Charity Commissioner under section 51 of the Trust Act. Hence the suit came to be dismissed. The said order passed by the learned Judge is under challenge in this Appeal.

4. The learned Advocate for the appellants submitted that the provisions of Order XXII, Rule 10 of the Civil Procedure Code are attracted in the present case and not the Order XXII, Rule 3. He submitted that even in the case of a hereditary trustee, there is no bringing on record the legal representatives of the deceased trustee. It is only substitution of a trustee who is recognised by the Charity Commissioner. He, therefore, submitted that there can be no abatement merely because there was no substitution done within the prescribed period within which the legal representatives are required to be brought on record under Order XXII, Rule 3. The learned Advocate for the appellant further submitted that it was an error on the part of the learned Judge to rely upon 49 Bombay Law Reporter page 428 and to come to the conclusion that fresh consent of the Charity Commissioner was necessary to add respondent No. 14 to the suit.

5. The learned Advocate for the respondents supported the judgment and decree passed by the Court below and contended that it was incumbent upon the appellant to bring on record the legal representatives of the deceased respondent No. 4 within the prescribed time. The respondent No. 4 was a hereditary trustee and, therefore, any of his heirs could come on record and the appellants have failed in it. It is alternatively submitted that the appellants ought to have atleast made an application to the Charity Commissioner within the period of 9

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