Substitution of heirs in a suit after the death of the plaintiff is necessary to continue the proceedings. A proceeding under Order 9 Rule 13 C.P.C. to set aside an ex parte decree is an original proceeding independent of the suit and not a stage in the suit itself. Substitution of heirs made in the Miscellaneous case under Order 9 Rule 13 C.P.C. does not amount to substitution of heirs in the suit.

( 1 ) AN interesting question regarding the substitution of heirs, on the death of the deceased plaintiff, has been raised in this Rule.

( 2 ) ONE Bimala Bala Ghosh now deceased, tiled a suit for ejectment of the defendant petitioner from premises No. 117, Akhil Mistry Lane, Calcutta, in which the defendant was a tenant.

( 3 ) THE aforesaid suit, being Suit No, 1889 of 1952, was decreed ex parte on 22-2-1953.

( 4 ) THEREAFTER, on 1-4-1953, the defendant petitioner filed an application, under Order 9 R. 13 of the Code of Civil Procedure, for setting aside the aforesaid ex parte decree, on the allegation that he came to know of the decree only on 31-3-1953. The aforesaid application was registered as Misc. Case No. 61 of 1953.

( 5 ) DURING the pendency of the aforesaid Misc. case, the plaintiff decree-holder Bimala Bala Ghosh died, on 23-12-1953. One of her sons Anil Kumar Ghosh entered appearance in the Misc. Case, under Order 9, R. 13 of the Code of Civil Procedure, on 18-1-1954 and by an application filed on the same date brought to the notice of the court the fact of death of Bimala Bala Ghosh and prayed for an adjournment of the hearing of the matter, so as to enable him to continue the execution proceeding.

( 6 ) BY an order dated 23-2-1954, the court below adjourned this Miscellaneous case to 9-3-1954, for substitution of the heirs of the deceased plaintiff decree-holder. The case was again adjourned to 18-3-1954, by an order passed on 9-4-1954.

( 7 ) ON 18-3-1954, the following order was passed by the court below:"applicant Anil Kumar Ghosh files a petition praying for substitution of his name as legal heir of the plaintiff since deceased. Defendant also files a petition praying for substitution of the name of (1) Sailendra Ghosh (2) Mohit Ghosh (3) Ajit Ghosh and Anil Kumar Ghosh, all sons, heirs and legal representatives of the plaintiff since deceased. The prayer of the defendant is allowed on consent. Let their names be brought on record as prayed for. Sri P. K. Roy, undertakes to Pile power on behalf of the plaintiff on the next date. To 26/4/54 for hearing of the Misc. Case. "

( 8 ) THE learned Judge was not right in treating the application filed by Anil Kumar Ghosh as an application for substitution. That application was labelled as one under Order 21, Rule 16 read with Section 146 of the Code of Civil Procedure and the prayer was to allow him to continue proceedings in execution of the decree obtained by his mother which was then pending. There was no prayer made by Anil Kumar Ghosh to secure a representation of the totality of the interest of the deceased plaintiff. He wanted to proceed with the execution case as one of the persons on whom the interest of the deceased decree-holder had devolved by operation of law. He felt no necessity to apply for substitution of the heirs of the deceased plaintiff, because under Order 22, Rule 12 of the Code of Civil Procedure, Rules 3, 4 and 5 of Order 21 did not apply to execution proceedings,

( 9 ) BE that as it may, on the application of the defendant the substitution of the heirs and legal representatives of the deceased plaintiff was made in the Miscellaneous case, as stated above.

( 10 ) THEREAFTER, by an order dated 1/4 March 1953, the Miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure was allowed and the ex parte decree was set aside.

( 11 ) NO application for substitution of themselves, in place of the deceased plaintiff, was made by her sons and heirs after the ex parte decree had been set aside and the suit restored to file. Curiously enough, in the original plaint the following note in red ink was made at the place where the name of the original plaintiff was written : (1) Sailendra Nath Ghosh (2) Mohit Kumar Ghosh (3) Ajit Kumar Ghosh and Anil Kumar Ghosh all sons and legal representatives of Sm. Bimala Bala Ghosh (deceased ).

( 12 ) IN the margin of note appears the signature of the Judge. Below the signature of