A suit against a dead person is a nullity and cannot be maintained, but the court has the power to implead other defendants in place of a deceased defendant under Order 1, Rule 10 C. P. C.

ORDER:- This revision petition raises an interesting point. It is, whether it is permissible to substitute the names of the legal representatives of a person who was already dead on the institution of the suit but was impleaded as a defendant. Two other minor questions have also been raised to which I will advert later.

2. Respondents possess a property which is surrounded on all sides by the properties of the petitioners/defendants and respondents want a right of way to reach the enclave. It is not disputed that plaintiff/respondents had impleaded one Antonio Mesquita as defendant No. 2 in the suit. Antonio Misquita was not alive when the suit was filed. Having learnt this during the pendency of the suit respondents applied for substitution of his heirs and this application was allowed. Accordingly petitioners 2 to 6 were impleaded as defendants. A plea was raised by the defendants that the suit against a dead person was a nullity ab initio and should be dismissed in limine. This contention was rejected by the lower Court on the ground that this issue had already been decided by an earlier order dated 7-9-1971 and further that the Court had jurisdiction to substitute the legal representatives of deceased Antonio.

3. The legal proposition that a suit against a dead person is a nullity and is liable to be dismissed on this count holds the field without any challenge. The legal representatives of a person already dead on the date of the suit cannot be brought on record either under Order 22 Rule 4 or Order 1 Rule 10 Code of Civil Procedure. (Sisir Kumar v. Manindra Kumar, AIR 1958 Cal 681 and C. Muttu v. Bharath Match Works, AIR 1964 Mys 293). In the Mysore case various decisions on the point have been considered and followed. It is clear from the review of all these decisions that when a suit is brought against a person as a sole defendant and that person is found to have died before its institution, the suit is a nullity from its inception and the Court has no jurisdiction to substitute as defendants the legal representatives of the deceased and to allow the suit to proceed against him either under Section 153 or under Order 1, Rule 10 (2) of the Code of Civil Procedure.

4. But in the instant case the question does not stop here. The decisions reported in the Calcutta and Mysore cases referred to cases where a sole defendant against whom the suit was brought was not alive and the suit was a nullity right from the outset. The order for substitution or addition of the legal representatives could not be allowed. In the present case the position is not similar. Here deceased Antonio was not the sole defendant. He was one of the three defendants impleaded in the suit. In view of the existence of this fact the rulings cited above will not apply. In this eventuality the Court was empowered to implead other defendants in place of the deceased defendant under Order 1, Rule 10 C. P. C. In Rangrao v. Kashinath (AIR 1947 Nag 73) a similar question was considered though there instead of the defendant, a dead plaintiff had been implead. It was held that under O.1, R.10 C. P. C. the legal representatives could be added as plaintiffs. It was observed that Order 22 Rule 3 however, was not applicable. The distinction is clearly noticeable. In Rangraos case there were two plaintiffs and even though the suit vis-a-vis the deceased plaintiff was void, it was competent so far the other plaintiff was considered and therefore it could not be dismissed on that ground. The same situation arises in the instant case and it was competent for the Court to permit addition of petitioners 2 to 6 as defendants who are the heirs of the deceased defendant Antonio. This objection therefore was rightly rejected by the learned lower Court.

5. Second ground in revision is that the relief claimed by the respondents amounted to compulsory acquisition of land under Article 2309 of the Portuguese Civil Code. This compulsory acquisition violates Article 31 (2) of th