Legal representatives of a deceased-plaintiff or defendant are bound by the proceedings taken so far against the deceased-plaintiff or defendant and cannot be allowed to file a written statement, the right of which was closed as soon as the ex parte order was passed against the deceased-plaintiff or defendant.

P. C. JAIN, J.

( 1 ) THE defendants-petitioners have filed this revision petition under S. 115 of the Code of Civil Procedure, 1908 against the order dated 4-12-1997 passed by the learned Civil Judge (Junior Division), Degana by which the learned Civil Judge dismissed the application filed on 30-1-1997 on behalf of the petitioners.

( 2 ) THE plaintiff-respondents No. 1 and 2 filed a suit for ejectment and arrears of rent against the deceased-defendant-Govind Ram and defendant-respondent No. 3 Moolchand. During the pendency of the said suit, defendant-Govind Ram expired on 29-7-1993. The plaintiff-respondents No. 1 and 2 filed an application purporting to be under O. 22, R. 4, C. P. C. along with an application under S. 5 of the Limitation Act. That application was allowed. It may be stated here that in that suit, an ex parte order was already passed against the defendants-Govind Ram and Moolchand because their counsel Hariram pleaded no instructions on their behalf.

( 3 )

( 4 ) IT is relevant to mention here that after taking the legal representatives of deceased- defendant-Govind Ram on record, the amended cause title of the suit was filed. Thereafter on 30-1-1997, an application was filed on behalf of the petitioners and other pro forma respondents No. 3 to 7, in which it was contended that the learned trial Court has fixed a date for recording evidence of the plaintiffs but since the legal representatives of deceased-defendant-Govind Ram were not given a chance to file a written statement in the case and hence, permission be accorded to the legal representatives of deceased-defendant-Govind Ram to file the written statement. It was submitted that they are the legal representatives of deceased-defendant-Govind Ram and are possessing different capacity than the original defendants. However, the learned trial Court dismissed the above application filed by the petitioners holding that the status or capacity of the legal representatives of deceased-defendant-Govind Ram was in no way different from defendant-Moolchand inasmuch as the legal representatives of defendant-Govind Ram stepped into the shoes of deceased-defendant-Govind Ram. It was, therefore, prayed that legal representatives of deceased-defendant may be provided a chance to file the written statement.

( 5 ) I have heard the learned counsel appearing for the petitioner and have very carefully gone through the record of the case.

( 6 ) THE learned counsel appearing for the defendants-petitioners has contended that an ex parte order was passed against the defendants when their counsel without contacting them pleaded no instructions. It caused lot of prejudice to the defendants but since Govind Ram died, his cause could not be pleaded. The legal representatives of deceased-defendant-Govind Ram, in the interest of justice, be given an opportunity to file the written statement contesting the suit filed by the plaintiff-respondents No. 1 and 2 so that justice may be done.

( 7 ) IN my opinion, the contention of the learned counsel appearing for the petitioners is devoid of any force. It is settled law that the legal representatives are stepped into the shoes of the deceased-plaintiff or defendant, as the case may be, and they must adopt the position occupied by his predecessor plaintiff or defendant. The legal representatives, therefore, must proceed with the litigation from the stage where death of defendant or plaintiff had taken place. They are legally bound by the pleading of his predecessors-in- interest in whose place they have been substituted. Hence, the legal representatives substituted under O. 22, R. 4, C. P. C. cannot set up a new case. The petitioners are bound by the proceedings taken so far against the deceased-defendant. They cannot be allowed to file the written statement, the right of which was closed as soon as the ex parte order was passed against the deceased-defendant-Govind Ram.

( 8 ) IN this connection, I may refer to a decision of the M