ORDER
1. A perusal of detailed order, dated September 5, 1985, passed by Hon'ble Mr. Justice A. P. Misra makes it clear that the petition is liable to be decided at the admission stage itself. His Lordship had directed to send copy of the writ petition and the slay application, by registered post to the respondents. It is unfortunate that when this case has been listed before this Court, almost long lapse of ten years, there is no report in respect of service on the respondents. In the absence of office note regarding service of notice on the respondents, it is presumed that service is sufficient and no one has come forward to oppose the petition.
2. This writ petition arises out of an order dated September 3, 1984 passed by learned Munsif, East, Ballia, being respondent No. 2, which was affirmed by learned IIIrd Addi-tional District Judge, Ballia being respondent No. 1.
3. By interim order dated September 5, 1985, this Court had stayed the operation of the impugned orders.
4. Sri S.N. Srivastava, learned counsel for the petitioner informed this Court that in compliance of directions contained in the interim order dated September 5, 1985 of this Court, the petitioner had deposited necessary process fee, together with copies of writ petition and stay application, in the Registry of this Court. If Registry fails to comply with the direction of this Court, the petitioner should not suffer.
5. I find force in the aforesaid submission of learned counsel for the petitioner. As already stated above, it is unfortunate that despite a clear cut direction in the interim order dated September 5, 1985 that this writ petition can be decided at the admission stage, immediately after service on the respondents, it took ten years for the Registry of this Court to list the matter for admission, and that loo, without there being any office report regarding service. The act of Registry of this Court is reprehensible and this Court strongly censure the same. For the lapses on the part of Registry, petitioner will not suffer and, therefore, I proceed to decide the case at the admission stage, in accordance with observations made in the interim order dated September 5, 1985 by Hon'ble A. P. Misra, J.
6. The brief facts of the case, as stated in the writ petition, are that respondent Nos. 3 to 7 instituted a suit against Smt. Reshma Kunwari for recovery of a sum of Rs. 8, 190/-
with interest, in 1973. Smt. Reshma Kunwari contested the aforesaid suit and filed her written statement.
7. Smt. Reshma Kunwari died on June 23, 1975. Therefore, plaintiff moved an application for substitution on August 9, 1975. The petitioners filed an objection taking the plea that they did not have any concern with Smt. Reshma Kunwari as they were intermeddlers, and as such, they could not be the heirs and legal representatives of late Smt. Reshma Kunwari. The petitioner claimed that as Sheo Dasiya Kunwai was only real daughter of late Reshma Kunwari, she was the only heir and legal representative.
8. The trial Court held that aforesaid Smt. Sheo Dasiya Kunwai was heir and legal representative of late Smt. Reshma Kunwari by its order dated October 3, 1977. The matter was brought to this Court, whereupon, this Court remanded the case for rehearing after affording opportunity of hearing to the parties. This time, learned Munsif East, by his order dated September 3, 1984 held that S/Sri. Deo Raj Tewari, Deo Narain, Ram Prasad and Sukh Deo being intermeddlers with the estate of Smt. Reshma Kunwari, are her legal representatives along with Smt. Shiv Dasia, who is daughter of the deceased Smt. Reshma.
9. The petitioners being aggrieved by aforesaid order, went in revision, which was dismissed by IIIrd Additional District Judge, Ballia by his order dated August 2, 1985. Hence this writ petition.
10. Having heard learned counsel for the petitioner and gone through the impugned orders, I am of the view that the impugned orders are not sustainable in law. The order passed by learned Munsif, dated September 3, 1984 is wholly illegal as the provisions of Order XXII, Rule 4, Code of Civil Procedure have not been taken into consideration. There is no factual finding on the question as 10 what assets had come into the hands of proposed heirs and legal representatives.
11. Law of substitution says that if it is a personal contract, or, individual contract, as in the present case, and if the sole defendant dies and nothing comes to the hands of intermeddiers, such intermeddlers are not liable to be substituted as right to sue does not survive in view of Order XXII, Rule 4, C.P.C.
12. This position has also been clarified in other Taxation Jurisprudence, including Sec tion 24B of the old Income-tax Act, 1922, as well as Section 43 of the Bengal Public Demand Recovery Act, 1913, wherein it has been provided that the real legal representa tives are liable to the extent of assets coming to their hands. That being the legal position, the order passed by learned Munsif East, Ballia, which has been affirmed by IIIrd Additional District Judge, Ballia, cannot be sustained in law.
13. In view of aforesaid position of law, this Court is of the view that the petitioners are not liable to pay personal loan of deceased Reshma Kunwari in any manner, whatsoever, and right to sue does not survive in terms of provisions of Order 22, Rule 4 of the Code of Civil Procedure.
14. In the result, the writ petition is allowed. Impugned orders dated September 3, 1984, passed by Munsif East Ballia and August 2, 1985 passed by Illrd Additional District Judge Ballia are hereby set aside. The respondents, and each one of them - are restrained from proceeding against the petitioners for recovery of any amount, in any manner, whatsoever, in pursuance of the aforesaid impugned orders.
15. Petition allowed.