1. This judgment will dispose of Civil Revisions Nos. 83 and 84 of 1966. In both the cases the parties are the same and the orders are similar in nature and the point involved is also the same. Civil Revision Case No. 83 of 1966 arises out of Miscel--laneous Case No. 149 of 1965 of the Munsif, 2nd Court, Bagerhat for setting aside an order of substitution passed in Misc. Case No. 424 of 1963 by the same Court. The Misc. Case No. 424 of 1963 started by the Opposite-Parties 1 to 3 under section 174
(3) of the Bengal Tenancy Act for setting aside a sale held on 16-12-54 in pursuance of a Rent Execution Case No. 1849 of 1953. The applicants filed that case for setting aside the sale on the contention that the notices and sale proclamation were not served on the judgement-debtors and they were suppressed by the auction --purchaser in collusion with the decree-holders. The husband of the opposite-party No. 3 came to know of this fraudulent sale on 21-12-1963 from one Mukunda Behari Halder and as such instituted a Misc. Case being Misc. Case No. 424 of 1963.
2. The auction-purchasers including the petitioners contested the Misc. Case and denied the allegations made by the judgment---debtors. This Misc. Case No. 424 of 1963 was fixed for peremp--tory hearing on 5-6-65 and on that day after opening of the case the present petitioners intimated to the Court that one Laxmi Kanta Bairagi, Opposite-Party No. 59 in that Misc. Case was dead. Thereupon the Opposite-Parties 1-3 immediately filed an application on that very day for substituting the heirs of the deceased Opposite-Party No. 59 Laxmi Kanta Bairagi. Thereupon the learned Munsif passed the following order:- "Parties are ready by filing hajiras. The case is taken up for trial and opened. At this stage the pleader for the opposite-party disclosed that O. P. 59 died long before. Petitioner files a petition and prays for substituting the heirs of O. P. No. 59. Heard learned pleaders. Prayer allowed. Accept the Misc. Petition and register accordingly. To 12-6-65 for filing necessary requisities. Let the case be taken off the P. List."
3. On 12-6-65 the learned Munsif passed another order wherein notices were directed to be issued upon the substituted opposite-- parties fixing 17-7-65 for their appearance. After this on 17-6-65 the present petitioners filed an application under Order XLVII, rule 1 of the Civil Procedure Code and section 151 of the Code of Civil Procedure for vacating the order of the learned Munsif dated 5-6-65 wherein the substitution was permitted. On this application the Misc. Case No. 149 of 1965 was started. It appears from the record that the Opposite---Parties 1 to 3 opposed this Misc. Case No. 149/65. In that application of the petitioners they contended that Laxmi Kanta Bairagi the aforesaid Opposite-Parity No. 59 actually died on 2-7-6t and as such the Misc. Case held abated long ago. It was further contended in that petition that as there was no prayer and consequently no order for setting aside the abatement, as such the order of substituting the heirs is illegal and the same should be vacated and that the Misc. Case No. 424 of 1963 could not, therefore, proceed. The Misc.
4. Case No. 149 of 1965 arising out of this review applications was set down for hearing on 10-7-65. On that day the petitioners filed a petition for time on the ground of their tadbdrkar's illness. The learned Munsif granted the prayer of the petitioners and fixed the case on 24-7-65 for hearing of this review application. On 1-9-65 the petitioners obtained summons from the Court with regard to the witnesses to be examined by them and the Misc. Case was ultimately fixed for hearing on 27-I1-
65. On that day no evidence, however, was given by the parties and as such the arguments were heard in the Misc. Case and the hearing was concluded. The learned Munsif thereafter disposed of the Misc. Case No. 149 of 1965 by his order No. 94, dated 30-11-65 wherein he came to the conclusion that the review petition is not maintainable and the prayer under section 15 of the Code of Civil Procedure has not been proved. It was further observed by the learned Munsif that the substitution petition was allowed in presence of both sides and at that time no objection was raised by the petitioners and asp such the Misc. Case was dismissed. As against this order of the learned Munsif, the Civil Revision Case No. 83 of 19606 has been filed by the petitioners.
5. The Civil Revision Case No. 84 of 1966 is directed against one order No. 79, dated 30-1-65 of the learned Munsif, 2nd Court, Bagerhat passed in Misc. Case No. 150 of 1965. In that Misc. Case the review application was filed against the substitution order passed on 5-6-1965 substituting the heirs of the deceased Laxmi Kaota Bairagi O. P. No. 59 in the Misc. Case No. 425 of 1963 of the same Court. The order is in same terms as passed in Misc. Case No. 424 of 1963 as quoted earlier. This review application which gave rise to the Misc. Case No. 150 of 1965 was also dismissed by the learnei Munsif after making similar observations as stated earlier in connection with the Civil Revision Case No. 83 of 1966. As against this judgment of the learned Munsif, the petitioners have filed this revisional application and has instituted Civil Revision Case No. 84 of 1966.
6. Mr. Syed Muhammad A.I, learned Advocate appearing on behalf of the petitioners-auction- purchasers has contended that the learned Munsif acted illegally and with material irregularity in the exercise of his jurisdiction in allowing the substitution of the heirs of Laxmi Kanta Bairagi without setting aside the abatement. It is contended by the learned Advocate that as the said Laxmi Kanta, 13airagi died long ago on 2-7-1964 the Misc. Cases automatically abated on the expiry of 90 days from the date of the death and the learned Munsif had no jurisdic--petition to order substitution of the heirs without setting aside the abatement. From the records it appears that when the petitioners filed the review applications and instituted the Misc. Cases Nos. 149 and 150 of 1965, sufficient opportunity was given to them to prove their case. It appears from the record that the petitioners also obtained summons from the Court to bring witnesses to substantiate the case of theirs. Though the case was taken up after several adjournments, still no witnesses were produced to prove the date of death of Opposite-Party No. 59, deceased Laxmi Kanta Bairagi. Apart from that, from the order of the trial Court it clearly appears that the order of substitution was passed by the learned Munsif after hearing the parties and no objection was raised against the prayer of the opposite-parties for substituting the heirs of the deceased Laxmi Kanta. The learned Munsif has categorically noted in his order that the prayer for substitution was allowed in presence of both parties. If there was any objection with regard to the substitution and if the case had already abated, as contended by the petitioners, it was the duty of the peti--tioners to point out the same at that time. No explanation has been given in the review application as to why the objection was not taken earlier. In the case of Meenatchi Achi alias Nachiammai Achi v. P. Sanathananarayan Ayyar (I L R 26 Mad. 224), it was observed as follows:- "Assuming that the defendants had the right to raise such an objection, that right accrued to them on the death of the plaintiff and they were bound to use all reasonable diligence in acquainting themselves with the state of the family of the deceased in view to ascertain whether the widow was entitled to prosecute the suit as the legal representative of her deceased husband and they were bound to take the objection at the earliest opportunity if they meant to insist upon their alleged right to raise that objection."
7. It is obvious that objections of this nature with regard to defect in representation and delay in such matters should be taken at the earliest opportunity.
8. The orders of substitution in the circumstances similar to this have been at times treated as orders for setting aside the e abatement where the plaintiff has been misled and failed on that account to take appropriate steps due to the circumstances of compelling nature. In the case of Jogunnessa BIN v. Sadsh Chandra Bhattacharjee (28 C W N 559), Mukerjee, J. With whom Walmsley, J. Agreed observed as follows: "The learned District Judge was undoubtedly right in his view of the law that the proceedings had automatically abated on the 18th January 1921, under Order XXII, rule 3, Civil Procedure Code, and no application for substitution could be entertained after that date, but the petitioners by presenting a proper application under Order XXII, rule 9 (2), Civil Procedure Code and only by showing sufficient cause could obtain an order setting aside the abatement. We think, however, that by reason of the application for substitution being readily allowed by the learned Munsif and no objection having been taken by the opposite-party at any stage of the protracted proceedings that followed in his Court, the peti--tioners were deprived of an opportunity to make an application under Order XXII, rule 9 (2) of the Code, and they were misled by the course of the proceedings that were adopted. The Order passed by the learned District Judge reversing the decision of the learned Munsif and dismissing the application for setting aside the sale has also not given the petitioners any such chance, and, as matters stand, they are altogether without any remedy.
9. The question then is what should be our order. Having regard to the fact that the petitioners are all minors, with the exception of one who is their guardian and who is said to be a pardanashin Mohomedan lady and who, as far as can be made out, is also illiterate, an application on their behalf under Order XXII, rule 9 (2), Civil Procedure Code stands a good chance of succeeding. I would, therefore, treat the order for substitution as bring one setting aside the abate--ment, and would set aside the order of the learned District Judge and remit the appeal to him to be dealt with on the merits."
10. Similar course was adopted and the application to bring the representatives of the deceased party on record which was made after the suit had abated was also treated as one to set aside the abatement under Order XXII, rule 9 of the Civil Procedure Code and disposed of as such in another Bombay case. (Vide 80 I C 761). These authorities show that in an appro--priate case where compelling circumstances exist, an application for substituting the heirs of a deceased party has been treated as a petition for setting aside the abatement provided there are substantial reasons and adequate grounds for that. This course however, need not be followed in the instant case, as the date of the death of Laxmi Cant. 13airagi, as claimed by the petitioners, has not been proved to the satisfaction of the trial Court. In view of the matter, the order passed in these two Misc. Cases i. e. Misc. Cases Nos. 149 and 150 of 1965 cannot be held to be illegal and vitiated by material irregularity in the exercise of the jurisdiction of the trial.
11. An objection was raised by Mr. Haldar, the learned Advocate on behalf of the opposite-parties relating to the maintainability of these revisional applications. It was submitted by the learned Advocate that the present Rules have already abated against the heirs of the deceased Opposite- Party No. 29. Tarani Charan Mandal, who was Opposite-Party No. 48 in the original, Misc, cases and was not impleaded in these revisional applications. It is contended that they were judgment- debtors-opposite-parties and as such were necessary parties in the revisional applications. From a perusal of the records it appears that those objections are substantial. I need not however go in detail into these objections, as I find that the Rules have no substance in their merits and as such is liable to be dismissed.
12. The result, therefore, is that these Rules are discharged. But in view of the facts and circumstances the parties will bear their own costs.