1. One Saiyid Abdullah brought a suit for declaration of his title to and recovery of possession of certain property with mesne profits. The suit was decreed and the decree was followed by proceedings for the ascertainment of mesne profits and in appeal to the High Court by the defendant in 1920. Some time in 1922, during the pendency of the appeal, the plaintiff Saiyid Abdullah died and the appellant-defendant made an application in the High Court for the substitution of his three sisters’ sons as his heirs and legal representatives. The learned Registrar passed an order making substitution. When the appeal came on for hearing a petition was put in by respondents Nos. 2 and 3 stating that they had no interest in the subject-matter of the appeal, and respondent No. 1 did not appear. The High Court allowed the appeal and set aside the decree of the Subordinate Judge and remanded the case for judgment according to law. When the case went back to the Subordinate Judge, the parties substituted as respondents applied saying that they had purchased the property from Saiyid Abdullah in 1918 and that they were not his legal representatives and stating who his legal representatives were, namely, his wife, his first cousin and his sister. Notice was given to these persons and they objected to their substitution on the ground that the substitution was barred by time; and this substitution was refused. Then the present application was made which was an application under Order XXII, Rule 9, Order I, Rule 10 and Section 151, Civil Procedure Code. It was also refused, and the present appeal has been brought against the order refusing the application.
2. So far as it is an application under Order XXII, Rule 9, it seems to me to be misconceived. There has been no abatement in this case. Substitution was made in the High Court and the appeal was heard and decided and the case remanded. The learned Advocate for the respondents contends that, so far as they are concerned, the decree of the High Court is a nullity and the decree of the Subordinate Judge deciding the amount of mesne profits stands. In my opinion this view cannot be taken. Substitution was validly made, although of the wrong persons; and it is impossible to say that the judgment of the High Court in these proceedings was a nullity. That being so, the decree of the Subordinate Judge is gone; and all that we have to consider now is whether, in the circumstances of the case, it is necessary, in order to enable the Court effectually and completely to adjudicate upon and settle the questions involved in the case, that the respondents should be added as parties to the proceedings. It is conceded that if a final decree had been passed new parties could not be added. But no final decree has been made. The case has been remanded for a fresh decision; and, if there was a bona fide mistake on the part of the appellant, it seems to me that this is a proper case in which the true representatives should be added in order that the matter at issue between the parties may be finally determined.
3. Now the appellant in the High Court found that the persona whom he sought to substitute were near relations of the original plaintiff and were in possession of the property which had been the subject-matter of the litigation. In fact it was contended by the learned Advocate for the appellant that he was entitled under the doctrine of lis pendens to proceed against the property–an argument which, in my opinion, is not tenable. But it affords ground for holding that the appellant in the High Court, in substituting these persons, was acting in the bona fide belief that they were the legal representatives of the deceased plaintiff. In fact they are not the representatives, and they are not under any liability; and, in order that the true liability may be determined, it seems to me necessary that the true representatives should be added as parties. There is no question of setting aside an abatement, because, as I have already said, the appeal has been duly heard and decided and the remand order duly made. It is necessary for the decision of the case before the Subordinate Judge on remand that the true representatives of the deceased plaintiff should be added, time being extended if necessary, for this purpose, and I would, therefore, order accordingly. The case not being properly a case under Order XXII, Rule 9, no appeal lies; but in the exercise of the powers of revision I would allow this application and set aside the order of the Subordinate Judge and direct that Musammat Bibi Amir-un-nissa, Masammat Bibi Ekbalan and Saiyid Muhammad Hussain be added as parties to the proceedings before the Subordinate Judge. There will be no order for costs.
Kulwant Sahay, J.
4. I agree.