A court has no jurisdiction to cancel a previous order of substitution made under Order 22, Rule 5 of the Civil Procedure Code, 1908, and reopen the matter based on subsequent allegations of fraud.

Ramaswami, J.

1. The question to be decided in this case is whether the learned Subordinate Judge had jurisdiction to substitute opposite party Chandi Singh and sons of Ramgovind Singh in place of Sheopujan Singh and Rampujan Singh whom he had already substituted by a previous order in place of Mt. Jamurata Kuer, who had instituted the appeal.

2. The material facts are that Kailash Singh had obtained a decree against Mt. Jamurata Kuer in a suit for specific performance of contract. Jamurata Kuer filed an appeal against the decree but on a subsequent date, that is, 11-2-1949, she died. On 24-2-1049 one Jagat Singh filed a petition for being substituted in her place alleging that he had been adopted by the deceased Jamurata Kuer and claimed to be her legal heir and representative. On the same date, Rajkishore Singh filed another petition claiming that he is the daughters son of Sahebjada Singh, husband of Mt. Jamurata Kuer, and asked to be substituted in place of the deceased appellant. On 4-3-1949 one Sheolakhan Singh filed a petition claiming that he was the nearest agnate of Sahebjada Singh. On 13-5-1949 Sheopujan Singh and Rampujan Singh filed a petition asking that they should be substituted since they were the nearest agnates of Sahebjada Singh. The learned Subordinate Judge fixed 13 8 1949 for hearing substitution matter. On that date Sheolakhan Singh, Rajkishore Singh and Jagat Singh filed separate petitions praying for permission to withdraw from the case and alleging that Sheopujan Singh and Rampujan Singh were really the next reversioners of Sahebjada Singh and they should be substituted in place of Jamurata Kuer, the deceased appellant. After hearing lawyers the learned Subordinate Judge ordered that Sheopujan Singh and" Rampujan Singh should be substituted.

3. On 31-8-1949, Ramgovind Singh applied for substitution claiming that he was the nearest agnate of Sahebjada Singh and Sheopujan and Rampujan ware strangers and ought to be removed from the record of the case. On 5-9-1949 Chandi Singh filed a petition containing allegations to the similar effect. On 2510 1949 Ramgovind Singh died and his sons were permitted to prosecute the petition on his behalf. After hearing the evidence adduced the learned Subordinate Judge cancelled his previous order dated 13 8-1949 by which he substituted Sheopujan Singh and Rampujan Singh in place of the deceased Jamurata Kuer. On the contrary he ordered that Chandi Singh and the sons of Ramgovind Singh had a better claim and they ought to be substituted in place of the deceased appellant.

4. In support of this rule, Mr. Lalnarain Sinha argued that the learned Subordinate Judge had no jurisdiction to cancel the previous order of substitution made on 13-8-1949 nor was he entitled to reopen the matter and hold upon further evidence that Chandi Singh and the sons of Ramgovind Singh had a better claim to be substituted in place of Jamurata Kuer. In my opinion this argument is well founded and must succeed. It is manifest that the order of the learned Subordinate Judge dated 13-8-1949 is one made under Order 22, Rule 5 which enacts as follows :

"Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court."

From the narrative of facts, it will be seen, that after the death of Jamurata Kuer separate petitions were filed on behalf of different persons claiming to be substituted in place of the deceased appellant. It is true that on 13-8 1949 Sheolakhan Singh, Rajkishore Singh and Chandi Singh filed patitions praying for permission to withdraw from the case and admitted that Rampujan and Sheopujan were really the sole reversioners of Sahebjada Singh. Upon this the learned Subordinate Judge made an order that Sheopujan and Rampujan should be substituted. Even so it is apparent that this order is made under Order 22, Rule 5 and not under Order 22, Rule 8 which applies