Article 177 of the Limitation Act and Order 22, Rule 4 of the Civil Procedure Code do not apply to a person who was never a party to the suit.

( 1 ) THIS Rule was issued at the instance of the pltf. of Title Suit No. 39 of 1944 of the Subordinate Judge of Nadia.

( 2 ) THE facts briefly are these : The suit was instituted on 10-7-1944 against one Surendra Nath Biswas. On 15-9-1944 all proceedings in the suit were stayed Under Section 34, Bengal Agricultural Debtors Act. On 22-10-1946 Surendra died leaving behind him as his heirs his three sons Sudhansu, Himanshu and Biranshu. On 27-7-1949 the stay order under the Bengal Agricultural Debtors Act, was vacated and prior to that on 4-9-1947 an appln. was made by the petnr. for substituting the heirs of Surendra, namely, Sudhansu, Himansu and Biransu in the place of Surendra. That appln. remained pending. On 27-10-1947 Biranshu died leaving behind him as his heir his widow Santirani. On 27-10 1949 the petnr. filed an appln. for substitution of Santirani as legal representative of Biransu and for the amendment of the plaint after such substitution. To this appln. an objection was filed by the defts. in the suit who are the opposite parties in the present Rule. Pending the disposal of that appln. a fresh appln. was filed by the petnr. for setting aside the abatement of the suit as against Biransu. To this also there was an objection filed by the opposite parties. Both these applns. were heard together and on 13-3-1950 the learned Subordinate Judge substituted Sudhansu, Himansu and Biransu as heirs of Surendra, but the Ct. refused to substitute Santirani as the heir of Biransu. There were two appeals. One by the opposite parties by which they challenged the decision of the learned Subordinate Judge setting aside the abatement as against Sudhansu, Himansu and Biransu. Against the order refusing to set aside the abatement of the suit as against Biransu the petnr. appealed. Both the appeals were dismissed.

( 3 ) THE opposite parties took no further steps but the petnr. has moved this Ct. Under Section 115, Civil P. C against the decision of the learned Dist. J. , refusing to set aside the abatement against Biransu. The learned Judge has held that the petnr. knew of the death of Biransu and did not apply for substitution of Biranshu's heir within 90 days of such knowledge. The Ct. held that the petnr. was late by one day even if the period of stay order is excluded from consideration.

( 4 ) VARIOUS arguments were urged before us on behalf of the petnr. and the opposite parties, but with all respect it seems to us that the parties as well as the Cts. below have entirely misconceived the actual position. The suit could not have abated as against Biransu as he was not a party to the suit at any time. He died pending the disposal of the appln. to substitute him and his two brothers in the place of their father. Now, as he was never a deft. at any time, Article 177, Limitation Act, cannot apply. That Article says that the period of limitation for substituting the legal representatives of a deceased deft. is 90 days from the date of the death of the deceased deft. As Biransu was not a deft. this Article can have no application. Further, if one looks to the provisions of Order 32, Rule 4, Civil P. C. the question of substitution only arises under that rule in the case of a deft. dying. Therefore, Order 22, Rule 4 has no application at all. The appln. for the substitution of the heir of Biransu was really for all purposes an appln. not for substitution but for amendment of the original appln. for substitution of the heirs of Surendra by putting in the name of Santirani instead of Biransu, Biransu having died before the appln. could be heard. That the appln. should have been so treated was adumbrated in the trial Ct. but this contention was lightly brushed aside and it seems that the point was not discussed in the appeal. In this Ct. also learned Advocate appearing for the petnr. did not raise this point either in his petn. or in his argument but it seems to us that this was the point for consideration and we put it to learned