Rule 2 of Order 22 of the Code of Civil Procedure, 1908 applies to cases where all the heirs or legal representatives of the deceased are already on the record in any capacity. In such cases, no application for substitution is required.

R.K.Choudhary, J.

1. This application is on behalf of the defendants first party and is directed against the Judgment and the order of the Additional Subordinate Judge 1, Patna, dated the 21st of December, 1954, holding that the suit out of which this application arises did not abate.

2. The short facts are these : A partition suit, being Partition Suit No. 39/23 of 1950/53, was filed by two plaintiffs the son and the grandson of one Abdul Rahman. The petitioners are the widow the sons and the daughters of Abdul Stibhan, the brother of Abdul Rahman. One Mohammad Omar was defendant No. 9 in the suit. He died on the 6th of November, 1951, and in his place his widow, Musammat Saycra and his sons and daughters were substituted. Musammat Saycra was made defendant No. 9 and her sons and daughters were defendants 9 (a) to 9(g). Later on, Musammat Sayera also died on the 23rd of July, 1953, leaving as her heirs her sons and daughters who were already on the record as defendants 9(a) to 9(g). As the heirs were already on the record, no application for their substitution was made in the case, but on the 24th of June, 1954, about a year after the death of Musammat Sayera, the plaintiffs made an application stating that Musammat Sayera died on the 23rd of July, 1953, and her heirs were already on the record as defendants 9(a) to 9(g) and prayed that the above fact may be noted.

On the 3rd of November, 1954, the petitioners put in an application contending that the application made on behalf of the plaintiffs referred to above having been filed beyond the time prescribed for the filing of an application for substitution of the heirs of the deceased, the suit abated. The learned Subordinate Judge overruled the above contention and passed an order that, in view of the fact that all the heirs of Musammat Sayera were already on the record, the name of Musammat Sayera, defendant No. 9 should stand removed and her heirs named in the petition filed by the plaintiffs be treated as such in her place. Being aggrieved by the above order the present application has been filed in this Court by the defendants first party.

3. The case originally came up for hearing before a Single Judge of this Court on the 24th of August, 1957, who, on the submissions made by both the parties that the two Division Bench cases of this Court have taken different views with regard to this matter, referred the case to be heard by a Division Bench, and subsequently on the 11th of August, 1958, a Division Bench, of this Court for the same reason thought it proper to have the matter decided by a Full Bench and hence this case has been placed before us for disposal,

4. The contention put forward by Mr. Safdar Imam on behalf of the petitioners is that the present case is not covered by Rule 2 of Order 22 of the Code of Civil Procedure, but is to be governed by Rule 4 of that Order and that no application for substitution having been made within the time prescribed by law, the suit abated. He has submitted that on the death of Mohammad Omar, the original defendant No. 9, his widow, Musammat Sayera, succeeded to his estate along with the sons and the daughters in specific shares and her share in the inheritance, according to the Mohamedan Law, was two annas.

It has, therefore, been argued that when on the death of Mohammad Omar his heirs were substituted, his sons and daughters represented only the 14 annas interest in his inheritance and the remaining two annas interest was represented by Musammat Sayera which remained unrepresented on her death as her heirs were not brought on the record in the rapacity of her heirs, and accordingly the suit abated. There is no merit in this contention.

5. Order 22, Rule 2 of the Code of Civil Procedure lays down that where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the c