The main legal point established in the judgment is that a petitioner who is not the legal representative of a deceased party cannot claim to be subrogated to the existing rights of the assignor and continue the suits under Order 22, Rule 10 of the Civil Procedure Code.

Wallace, J.

1. Civil Revn. Petns. Nos. 383 & 384 of 1922 : These petitions relate to two suits : Original Suits Nos. 17 and 18 of 1919, on the file of the Subordinate Judge, Calicut. They are suits by Stanithamma Mootha Panikkar to redeem property demised on kanom to the 1st defendant. The plaintiff died on 24th February, 1919, and the suit would, in the ordinary course, have abated on 24th August, 1919, under the law then in force. The plaintiffs successor Vibekerana Mootha Panikkar made no application to be brought on record to continue the suits. He granted melcharths to the present petitioner authorizing him to take such steps as were necessary to recover the property. The petitioner, on 19th August, 1919, filed petitions. Miscellaneous Petitions Nos. 263 and 264 of 1919, in the lower Court under Order 22, Rule 10, to be brought on record and continue the suits. These were dismissed both in the first Court and in the appellate Court and the petitioner seeks for revision of that order.

2. It is clear that petitioner is not claiming under the original plaintiff. She is not, therefore, his legal representative within the present definition of that term in the present Civil P.C. She is not also a person intermeddling with the estate of the deceased, but one who derives wholly from the deceaseds heir and is not qua the estate in a position of opposition to the legal heir. Now this legal heir under whom she claims is not a party to the suit. She contends that this does not prevent the operation of Rule 10, but I think this contention cannot be supported. She can only claim to be subrogated to the existing rights of her assignor, and if that right does not include the right to continue the suit, I do not sea how she can be subrogated to such right which does not exist at present in her assignor. The assignor, who has as yet not been brought on in the suits, has no locus standi therein, and, a fortiori, his assignee can have none.

3. I am not referred to any authority in support of the petitioners contention. The language used in Lakshmi Achi v. Subbarama Aiyar [1915] 39 Mad. 488 : "The words assignment and creation indicate that it is the person suing that assigns and creates the interest which enables the assignee to continue the suit" and in Manindra Chandra Nandi v. Ram Kumar Lal Bhagat A.I.R. 1922 P.C. 304 : "The order contemplates cases of devolution of interest from some original party to the suit, whether plaintiff or defendant, upon some one else," are opposed to this contention.

4. The petitioner calls in aid Section 146 of the Civil P.C., but that does not seem to me to apply. Her assignor could not have put in an application under Order 22, Rule 10 to continue the suit, since he was clearly the legal representative of the deceased, a person who, in law represented his estate, and, therefore, he could apply only under Rule

3. Rule 10 only applies to cases not covered by Rule 3. Section 146 will not avail to validate an application by the petitioner, because the petitioner is not claiming under any one who might himself have put in a valid application under Rule 10. The ruling in Sundaram Chettiar v. Viswanatha Pandarasannadhi A.I.R. 1922 Mad. 402 does not affect this view, since there the application was by a person entitled to put in an application under Order 22, Rule 10. It is not necessary to consider hare whether under Section 146, the petitioner might in law have put in an application under Rule 3 to be herself brought on as legal representative since no such application was put in by her.

5. There is no suggestion in this case of collusion between the petitioners assignor and the defendants in the suits. There is no reason, therefore, why the assignor should not have himself applied within time to be brought on record. He did apply after the dismissal of the petitioners applications, but his petitions were, after he had died and his legal representative had applied to be brought on in these petitions, dismissed