The court has the power to recall a previous order made under Order 22, Rule 3, Civil Procedure Code, if it was made due to misrepresentation of facts or without notice to all the parties. The court is bound to determine the question of legal representation by an enquiry under Order 22, Rule 5, Civil Procedure Code, if a dispute is raised.

Judgement

ORDER:- Both the Civil Revisions will be disposed of by this common judgment.

2. In order to appreciate the facts, it is necessary to refer to the following genealogical table as given in the plaint:

3. Gurubari, the widow of Brahmananda filed Title Suit No. 39 of 1961 for partition of her share in the undivided joint family properties. Defendant No. 2 filed written statement claiming himself to be the adopted son of late Brahmananda. Defendants 1, 3 and 4 supported the claim of defendant No. 2. All these defendants pleaded pre-partition. On 5-12-1963 a preliminary decree for partition was passed on the finding that defendant No. 2 was not the adopted son of Brahmananda. On 13-8-1964 the plaintiff applied for making the decree final. During the pendency of the final decree proceedings the plaintiff died on 9-3-1972. On 17-4-1972 defendant No. 7 Sitaram Beura, who is the petitioner in these Civil Revisions, applied for being substituted in place of the deceased plaintiff claiming himself to be the son of the deceased plaintiff. On 25-4-1972 his prayer was allowed and he was substituted as plaintiff. On 10-5-1972 Sunamani Dei, the sister of defendant No. 2 Pranakrushna applied for being substituted in place of the original plaintiff claiming herself to be the adopted daughter of late Brahmananda. On 19-7-1972 the court recalled its previous order dated 25-4-1972 and directed that the name of Sitaram Beura standing in the position as sole plaintiff should be struck off and he should be allowed to remain as defendant No. 7 and further directed that an enquiry should be held under Order 22, Rule 5, Civil Procedure Code for determination of the question as to who is the legal representative of the deceased plaintiff Gurubari. At the enquiry, both Sitaram and Sunamani led evidence in support of their respective contentions. The court below after going into the matter at considerable length came to the conclusion that none of the rival claimants was adopted by late Brahmananda Beura and accordingly rejected the petitions for substitution filed by them. As none else came forward for being substituted in place of the deceased plaintiff the court directed that the final decree proceedings initiated upon the application of the deceased plaintiff should be dropped. It is against this order that Civil Revision No. 272 of 1974 has been filed. An application for review view of the aforesaid order dated 15-12-1972 was rejected by order dated 27-6-1974 which is being challenged in Civil Revision No. 271 of 1974.

4. The main contention of the petitioner is that the court below had no jurisdiction to reopen the question of substitution and recall its previous order dated 25-4-1972 substituting the petitioner in place of the deceased plaintiff.

5. Rule 3 of Order 22 provides that where one of two or more plaintiffs die and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Rule 5 of Order 22 provides:

"Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant such question shall be determined by the Court."

6. It is clear that Rule 3 applies only where there is no dispute as to who is the legal representative of the deceased party. But if a dispute is raised as to whether any person is or is not the legal representative of the deceased party it should be judicially determined by the Court under Rule 5. On a reference to the records, it is apparent that order dated 25-4-1972 was made under Order 22, Rule 3 and not under Order 22, Rule 5, Civil Procedure Code. The reasons for recalling the previous order dated 25-4-1972 and for directing an enquiry into the matter have been clearly stated in th