A transferee from the legal representative of a deceased party can apply for substitution of his name in place of the deceased party under Section 146 of the Civil Procedure Code, even if the deceased party had not applied for such substitution himself.

CHUNDER, J. :- This is an appeal against an order of the Subordinate Judge of Burdwan in a suit for partition.

2. It appears that there were four brothers Bidhusekhar, Adyanath, Akul Nath and Kali Nath. It was alleged in the partition suit that Akul Nath and Kali Nath separated and Bidhusekhar and Adyanath were joint in property, Adyanaths widow Bhuban Mohini sued the heirs of Bidhusekhar, who was then dead, for a partition of the joint properties. It was numbered as partition Suit No. 252 of 1931 and was filed on 21st February 1931. The suit was dismissed on 5th April 1933 and on an appeal being taken to this Court, being Appeal No. 148 of 1933, a preliminary decree was passed for partition by this Court on 8th June 1936. It appears that no further steps were taken towards the final decree in the Subordinate Judges Court and the Subordinate Judge consigned the record to the record room by his order dated 10th December 1936. It appears that Bhuban Mohini died on 6th November 1943. At the time of her death, it is said that Kali Nath was dead and Akul Nath was the sole surviving reversioner. It appears that Akul Nath did not get himself substituted in the partition suit nor did be take any steps. On 26th January 1944, he transferred the properties he has inherited as reversioner to Gopinath Mukherjee who is the petitioner in this case and is the respondent in this appeal. Gopinath applied to be substituted in the suit and the defendants, that is, the heirs of Bidhusekhar filed an objection. The objection was fought out by defendant 4 who is the appellant before us. The Sub-ordinate Judge refused the prayer for substitution by his order dated 31st August 1945 and on revision proceedings being taken in this Court in Revision casa No. 94 of 1946 the case was sent back to the Subordinate Judge for decisions on the merits. The Subordinate Judge has now allowed substitution. He has held that O. 22, R. 3 and O. 22, R. 10, Civil P.C., do not apply. He has further held that S. 146 of the Code applies and he has allowed substitution under S. 146 of the Code. The present appeal relates to that order.

3. The first point that arises is whether an appeal at all lies. An appeal is a creature of statute and in the Code of Civil Procedure an appeal is given against a decree and against some orders which are considered as in the nature of a decree, for example, decisions under S.47, Civil P.C. As against other orders to have a right of appeal the case must come within O. 43, R. 1. Order 43, R. 1 of the Code gives a right of appeal as against certain orders under O. 22, but gives no right of appeal as against an order under S. 146, Civil P.C. Therefore in the present case no appeal lies and the appeal is dismissed.

4. There has been filed a petition to treat this as a petition in revision in case an appeal does not lie. We are, therefore, taking it up as a matter in revision under S. 115, Civil P.C.

5. The very short point which really arises in this case is whether Gopinath can come under S. 146, Civil P.C. Reliance has been placed upon a decision of the Patna High Court in the case of Gobardhan v. Saligram, 15 Pat 82 : (AIR (28) 1936 Pat 123). In that case it was decided that the transferee from the legal representative of a deceased party had no right to come either under R. 10 of O. 22 or R. 3 of that Order. In the present case such has also been held rightly by the subordinate Judge. Then in that case it was further said that

"Section 146 authorises a person claiming under another person to make an application which the other person could have made. The appellant can make an application which Priyasakhi [that is the person through whom the claim was filed] could have made namely for substitution of her name. I fail to understand how he can apply for substitution of his own name."

In other words, according to the Patna decision as applied in this case the position would be that Gopinath may be entitled to ask for substitution of the nam