ORDER :- Plaintiff opposite party, State Bank of Bikaner had filed a suit on 4-10-66 against Seth Sriniwas Murarka and others for the recovery of Rupees 2,67,147.20 on the basis of a mortgage. Sri Ram Prasad, a transferee of some of the mortgaged property was also impleaded as a defendant. Sri Ram Prasad filed a writ petition in the Hon'ble High Court and proceedings in the suit were stayed. The writ petition was disposed of on 7-4-66 and the stay order was vacated. During the pendency of the writ petition on 1-2-66 Sriniwas Murarka died. No steps were taken for bringing his legal representatives on record in the writ petition. The record was received in the Court below on 1-10-66. On 11-10-66 the plaintiff opposite party, Bank of Bikaner moved an application under Order 22, Rule 4 and Order 6, Rule 17, C.P.C., mentioning therein that the sons of Sriniwas Murarka were already on record as defendants 2 to 4. It was also prayed that the two daughters, Smt. Durga Bai and Ram Bai be added as legal representatives of the deceased Sriniwas Murarka. An application under Section 5 of the Limitation Act was also given. The condonation of delay was sought on the ground that the deponent who described himself as Manager of the Bank posted at Kanpur and doing pairvi on behalf of the plaintiff, or any other officer of the Bank had no knowledge about the death of Sriniwas Murarka before 1-10-66 when the case was listed at Rae Bareli. The affidavit further showed that it was only on 8-10-66 that the deponent who was the pairokar on behalf of the Bank could ascertain the names of the deceased's daughters. The application was opposed. The learned Civil Judge condoned the delay and allowed the application with the direction that the two daughters of the deceased will also be brought on record as legal representatives of the deceased Sriniwas Murarka, hence this revision.

2. Learned counsel for the applicant has contended that the suit had abated against Sriniwas Murarka when all the legal representatives of the deceased were not brought on record within the prescribed period and no application has been made for setting aside the abatement. Reliance has been placed by him on State of Punjab v. Nathu Ram, AIR 1962 SC 89; Sri Chand v. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427 and Swaran Singh Puran Singh v. Ramditta Badhawa (dead), AIR 1969 Punj and Har 216.

3. The cases relied upon by the learned counsel for the applicant only lay down that where an appeal abates against a deceased the appeal becomes incompetent against other persons if the decree under appeal is joint and indivisible and is likely to result in two inconsistent decrees. The proposition laid down in the aforesaid three cases cannot be doubted. The question for determination is whether the appeal stood abated on the death of Sriniwas Murarka when some of his legal representatives i.e. the sons were already on record. Under Section 2(11) C.P.C.:

"Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."

It cannot be denied that the sons who were already on record were some of the legal representatives of the deceased and if the appellant thought that they represented the estate of the deceased the suit or the appeal would not stand abated because some legal representatives were left to be impleaded.

4. It is well settled now that if there are several legal representatives, it is sufficient if at least one of them is impleaded under Order 22, Rule 4, C.P.C. If a bona fide application within time made for substitution of some of the heirs only is sufficient to keep the suit alive, there is no reason why the same principle should not hold good in a case where some of the heirs are already on record. Moreover, as remarked earlier, an ap

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