A.K. Nandi, J.

1. A short question comes up for decision before this court. Title Suit No. 37/76 in the 1st court of Munsif at Durgapur was dismissed for default on the 1st of February, 1982. A Misc. case being No. 35182 under Order 9 Rule 9 C.P.C. was filed on 25th of February, 1982. During the pendency of the Misc. Case the original petitioner died and his legal representatives were duly substituted. The Misc. Case ultimately succeeded and the suit was restored to file. The legal representatives of the deceased petitioner filed a petition under section 151 C.P.C. asking the court to substitute the petitioners, namely the legal representatives of the original plaintiff, now deceased, in the suit. The trial court relied upon a single bench decision in Salil Kumar v. Sailendra Nath reported in AIR 1960 Cal 203 ; 63 CWN 883 to reject the application by an impugned order No. 116 dated 13.9.88. The said order is now challenged before me.

2. THE learned Judge in Salil Kumar's case (Supra) opined that a proceeding under Order 9 Rule 13 C.P.C. is an original proceeding independent of suit. So-substitution of a deceased party in a Misc. Case under Order 9 C.P.C. will not ipso facto