Gobind Sahu vs Zafar Karim

Adami, J.—The facts of this case are simple. One Bibi Kulsum instituted a suit for a declaration that the decree obtained against her husband''s father, Habibuddin, upon a mortgage was fraudulent ; at the same time, she applied for an injunction against the proceedings taken in execution of the decree. The injunction was issued and thereupon the defendant in the suit appealed to the District Judge against this interlocutory order. Whilst the appeal was pending before the District Judge, Bibi Kulsum died, on the 29th of October 1921, and the defendant-appellant then applied to the District Judge on the 7th of January 1922 for substitution of the husband and three children of Bibi Kulsum as respondents to the appeal. The defendant-appellant succeeded in his appeal and the District Judge''s order was upheld by this Court. An application was thereafter made to the Munsif asking for substitution in respect of one of the children of Bibi Kulsum, but no application was then made before the Munsif for substitution in the place of the deceased Bibi Kulsum, though on the 22nd November 1921, the plaintiff''s pleader informed the Munsif that Bibi Kulsum had died. On the 18th August 1923, the Munsif directed that a subsequent application for substitution in the place of Bibi Kulsum and also an application for substitution in the place of Mussammat Sazda should be heard together on the 28th August. On the 28th August the Munsif considered the objection that the application '' for substitution of the heirs of Bibi Kulsum was made out of time and that the suit, therefore, had abated, and he held that as the substitution had been made in the appellate Court the present petition for amendment was merely a formal one and was not out of time.

This application is now made against the order of the Munsif, and it is argued, that no steps having been taken within time to substitute the legal representatives of Bibi Kulsum in the Munsif''s Court, the suit was barred. The point taken in this case has been that the appeal was not an appeal arising out of the suit but out of the injunction in connection with that suit, and therefore the action taken before the District Judge would not satisfy the requirement to make such substitution within time before the Munsif. The case, however, is governed by the decision of the Privy Council in 22 CWN 169 (Privy Council) . There it was held that the introduction of a plaintiff or a defendant for one, stage of a suit is an introduction for all stages even if it be made on appeal from a mere interlocutory order. The decision of their Lordships of the Privy Council meets the contention of the petitioner and it is clear therefore that the application must be rejected with costs : hearing fee two gold mohurs.

Bucknill, J.

I agree.