ORDER S.N. Srivastava, J.
1. The writ petition is directed against the order dated 4-2-1988 passed by 1st Additional District and Sessions Judge, Azamgarh setting aside the order dated 15-5-1986 deciding the issue No.3.
2. Suit No. 96 of 1983 was filed for cancellation of sale deed dated 1-1-1985 executed by Jagman in favour of Sumer relating to plot No. 142 and 245 situated in village Nibada, Pargana and Tehsil Mohammadabad, Azamgarh.
3. After completing the pleadings of the parties, issue No. 3 was framed relating to jurisdiction of the Civil Court. By the order dated 15-5-1986. Trial Court decided issue No. 3 that Civil Court has jurisdiction to try the suit.
4. The defendant preferred a Revision before the District Judge, which was transferred for disposal before 1st Additional District and Sessions Judge, Azamgarh.
5. During the pendency of the revision, the defendant No.2 died on 4-11-1986. An application 13 Ka 2 was filed for bringing his heirs and legal representatives on record. During the pendency of the Revision the defendant Jagman also died and an application was filed by Ram Karan, Phool Chandra, Chaturi, Babu Lal and Phoolwar claiming themselves as heirs and legal representatives. On 15-9-1987, another application No. 17 Ga 2 was also filed by Mochan and Dhiraj as heirs of Jagman. All the applications were pending before the provisional Court.
6. Revisional Court order dated 4-2-1988, without deciding the Substitution Applications set aside the order of trial Court without deciding the case on merit and sent back the record to the trial court to decide all the substitution applications.
7. Order dated 4-2-1988 is impugned in the present writ petition.
8. Heard learned counsel for the petitioner and learned Standing counsel.
9. Learned counsel for the petitioner urged that the revisional Court erred in law in setting aside the order passed by trial Court passed on merit. It was further urged that the revisional Court should have decided the applications for substitution first and thereafter should have proceeded to decide the matter on merit which was not done as such the order passed by the revisional Court is vitiated.
10. In spite of the fact that the notices were served sufficiently under the Rules of Court 1952. No one appears on behalf of the opposite party No. 2
11. Perused the record and considered the arguments raised by the learned counsel for the petitioner, I am of the view that the order passed by the revisional Court suffers from error of law apparent on the face of record and is liable to be set aside.
12. The only ground for setting aside the order passed by the trial Court was that substitution applications were pending and revisional Court cannot record any evidence on substitution as such the matter is remanded back to the trial Court.
13. The revisional Court did not applied its mind so far as the merit is concerned. The Revision was not competent as the substitution applications were pending. Unless substitution applications are disposed of, no order of setting aside the order of the trial Court in revision could be passed.
14. Order XXII, Rule 5 of C.P.C, is necessary and relevant for the present case which is quoted as follows :--
"5. Determination of question as to legal representative--
Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court;
(Provided that where such question arises before an Appellate Court, that question and to return the records together with evidence, if any recorded at such trial, its findings and reasons thereafter and the Appellate Court may take the same into consideration in determining the question."
15. It will be appropriate to quote Section 141 of C.P.C. also.
141. Miscellaneous Proceedings:-- The procedure provided in this Code in regard to suit shall be followed, as far as It can be made applicable, in all proceedings in any Court of civil jurisdiction."
16. The provisions of Order XXII. Rule 5 is applicable to the revisions also.
17. If revisional Court was of the opinion that the applications for substitution to bring the legal representatives of defendants Nos. 1 and 2 requires evidence it could have sent the matter to the trial Court to try the question of legal representatives and return the finding together with the evidence as required under Order XXII. Rule 5 of C.P.C. Setting aside the trial Court's findings without taking any decision on Substitution Applications is unwarranted.
18. That the revisional Court acted without jurisdiction in allowing an incompetent revision without passing any order on substitution applications without bringing the heirs of the parties on record. The order passed by the revisional Court is unsustainable in law. and is liable to be set aside.
19. The revisional Court shall pass an order on substitution application. In case there is any difficulty in taking a decision and the same requires recording of evidence then aforesaid procedure prescribed under Order XXII, Rule 5 of C.P.C. shall be followed. The Court in which substitution applications are filed shall take decision on the question of legal representatives as contemplated Under Section 2(11) of the C.P.C.
20. Under Section 2(11) of C.P.C. is quoted as under :--
"Legal representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."
21. The Court in which the applications (substitution) are filed shall decide on the basis of principle as contemplated under the said provisions. The person who represents estate of deceased person and includes any person intermeddles with the estate of de-
ceased shall be sued as legal representative. In case of party sues or sued in a representative character the person on whom the estate devolves on the death of the party may also be recognised as legal representative.
22. In the result the writ petition is allowed. The revisional Court is directed to decide all the substitution applications pending before it and only after disposal of the substitution applications to bring the heirs and legal representatives on record as required under provisions of Section 2(11) of C.P.C. and thereafter decide the revision on merit.
23. Revisional Court will pass appropriate order within a period of six months.