The death of a necessary party to a suit during the pendency of the suit leads to the abatement of the entire suit if the heirs of the deceased party are not substituted within time.

1. This is an application by the plaintiff. The plaintiff filed a suit for declaration that the sale dated 6-3-67 of the suit properties in Execution Case No. 53 of 1956 was illegal, fraudulent and not binding on him. The defendants, in execution of the decree for costs, had purchased the suit properties for a very low price of Rs. 95. Defendant No. 1 Sunderlal Jha died on 20-6-73. The plaintiff filed a petition on 5-7-73 for string out the name of deceased Sunderlal Jha because his son Lakshmi Kant Jha was already on record as defendant No. 2. The hearing of the suit started on 17-6-78. Defendant-opposite party No. 1 filed a petition stating that defendant No : 1 Sunderlal Jha had also left behind his widow Mt. Ugeshwari Devi and a daughter Sita Devi, who were not substituted in place of deceased defendant No. l. According to the defendants, the whole suit had abated. The plaintiff denied that Mt. Ugeshwari Devi and Sita Devi were the widow and daughter, respectively, of deceased Sunderlal Jha. But even so, he filed a petition that they should be substituted in place of defendant No. 1. The trial Court has found that Lakshmi Kant Jha, defendant No. 2, is the son of Sunderlal Jha and is on the record of the suit from before. The trial court has ultimately dismissed the suit, on the ground that it had abated in its entirety as the plaintiff had failed to substituted Mt. Ugeshwari Devi and Sita Devi in place of the deceased Sundarlal Jha within time.

2. Shri Kaushal Kishore Sinha, learned counsel appearing for the petitioner, submitted that the whole suit cannot abate because one of the heirs of deceased Sunderlal Jha was already on the record as one of the defendants to effectively represent the interest of others. He relied upon a decision of the Supreme Court in Mahabir prasad V/s. Jage Ram, AIR 1971 SC 742. It was held therein that where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he also is on record as an heir and legal representative. It was further held that even if there were other heirs and legal representatives and no application for impleading them was made within the period of limitation prescribed by the Limitation Act, the proceeding would not abate. Shortly stated, the facts of that case were like this. Jage Ram and two were lessees of certain property belonging to Mahabir Prasad, his mother Gunwanti Devi and his wife Saroj Devi. Mahabir Prasad and two others filed a suit for a decree of certain amount of rest due by Jage Ram and others. The suit was decreed the execution of the decree was resisted by Jage Ram and others. The application for execution was dismissed. Mahabir Prasad alone appealed against that order and impleaded the two other plaintiffs as respondents in the appeal. Saroj Devi, one of the plaintiffs-respondents, died and an application was filed by the plaintiff-appellant Mahabir Prasad to strike of the name of Saroj Devi. Her name was struck off. Ultimately, the High Court dismissed the appeal holding that because the heirs and legal representatives of Saroj Devi were not brought on the record within the period of limitation, the. appeal had abated in its entirely. Against that order, an appeal was preferred in the Supreme Court. Referring to the provisions contained in Order 41, Rule 4, of the Code of Civil procedure, it was held :

"Competence of the appellate court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record. Power of the appellate Court under Order 41, Rule 4 to vary or modify the decree of a subordinate Court