JUDGMENT
Binod Kumar Roy, J.
1. Since these two civil revision applications are interconnected arising out of the same suit, and since common questions of law and facts are involved, besides they were also directed to be heard together, and have been heard together, they are being disposed of by this common order.
2. The plaintiffs are the petitioners who are purchasers from defendant No. 2, it appears that defendant No. 2 died but no application for substitution was filed. From the order dated 24th May, 1986, it appears that summons and cards were served on the defendants. Hearing of the suit also started ex parte. On 17th June, 1986, on behalf of defendant first party, an application was filed for recalling the order of ex parte hearing which was allowed by order dated 26-6-1986. The defendant first party also filed a petition for time for filing written statement which was filed on 11-8-1986. No written statement was filed by Defendant No. 2. On 7-10-1986, an application was filed by the plaintiffs under Order XXII, Rule 4 (4) of the Code of Civil Procedure stating that it appears from the written statement that defendant No. 2 had died and hence his name be expunged. A rejoinder was filed by the defendants on 14-11-1986. On 3rd April, 1986, both parties were present. The petition dated 7-10-1986 filed by the plaintiffs was heard and allowed and the name of defendant No. 2 was directed to be expunged by the office. On 20-4-1987, an application was filed on behalf of the defendants 1st party to recall the order dated 3rd April, 1987. On 2nd June, 1987, a rejoinder was filed by the plaintiffs. The petition dated 20th April, 1987 filed by the defendants was heard and allowed holding that the order dated 3rd April, 1987 was passed without considering the rejoinder of the defendant 1st party and thus it would be expedient to recall the same, subject to the payment of cost of Rs. 20, Civil Revision No. 1433 of 1987 is directed against the order dated 6th July, 1987. The petition dated 7-10-1986 was further heard and dismissed by order dated 24-8-1987 holding as follows:
(i) Even though there was no satisfactory service report, the suit was fixed for hearing against defendant No. 2 and from the records, it does not appear that defendant No. 2 had at all any knowledge of the suit.
(ii) From the plaint, it appears that the plaintiffs had sought confirmation of possession against the defendant 1st party and in the said view of the matter defendant No. 2 appears to be a necessary party of the suit and after his death it was obligatory for the plaintiffs to file an application for impleading his legal representatives which has been done despite expiry of the prescribed period.
(iii) The plaintiffs cannot be given benefit of Order XXII, Rule 4 (4) of the Code of Civil Procedure.
(iv) The suit, accordingly, abated against the defendant No. 2.
(v) Since the suit in question has been filed before the redemption of the mortgage, and for recovery of possession from all the defendants, there cannot be redemption in part and it cannot be decreed allowing redemption in part. Civil Revision No. 1435 of 1987 is directed against the aforementioned order dated 24-8-1987 rejecting the petitioner’s petition dated 7-10-1987.
3. Mr. Thakur, learned Counsel appearing for the petitioners, in both cases, submits as follows:
(i) The court below has completely misconceived the legal position inasmuch as the petitioners themselves being purchasers from deceased defendant No. 2 were the legal representatives as defined under Section 2 of the Code of Civil Procedure.
(ii) The order dated 3rd April, 1987 having been passed in presence of the parties, it was illegally recalled by the impugned order dated 6-7-1987.
(iii) defendant No. 2 had not filed any written statement and thus the petitioners were justified in filing the application under Order XXII, Rule 4 (4) of the Code of Civil Procedure. Alternatively, the petitioners still be given opportunity to file a substitution petition if the contentions made above are not accepted by this Court.
4. The petitioners claim themselves to be purchasers and hence legal representatives. Thus, there was no question of abatement.
5. However, in the interest of justice, I permit the petitioners to file an appropriate application for impleading the heirs of the deceased defendant No. 2 Bibi Maqbula within 30 days from the date of receipt of this order before the trial court to avoid any objection.
6. These applications are, accordingly, allowed to the extent indicated above and the impugned orders are set aside.
7. I make however no order as to cost.