D.C. Thakur, Presiding Officer

1. The Miscellaneous Applicant preferred on Wednesday, November 18, 2002 two applications being respectively for setting aside and/ or recalling the ex parte order dated July 7, 1999 and the certificate of recovery bearing No, 69 of 1997 dated August 9, 1999 issued on the basis of that ex parte order; and also for condonation of delay in preferring the said application. Thereafter, the said applicant has also filed one supplementary affidavit containing the new developments being subsequent to the filing of the above two applications.

2. The respondent/certificate holder Bank has also filed three objections in respect of the above ones, after service or those upon the Miscellaneous Applicant and other necessary parties.

3. The Miscellaneous Applicant has also filed one affidavit-in-reply (hereinafter for short called the reply) to the written objections of the said respondent/certificate holder Bank.

4. Thereafter, the certificate holder/respondent-Bank has made one application along with the annexures. There has also been filed one affidavit by Mr. Dilip Kr. Dey, the licensed clerk in the employment of M/s. S.N. Sen and Co., being the Advocate for the applicant-Bank along with one annexure being marked with the letter A for identification.

5. During the hearing of the said application, one certificate issued on Friday, February 14, 2003 by the Deputy Sheriff of the Honble High Court at Kolkata along with the seal of Sheriff of Kolkata was submitted on behalf of the respondent/certificate holder Bank before this Tribunal. The said certificate was accepted by the Tribunal

6. The application was preferred on November 18, 2002 by the said applicant when the recovery proceeding, on the basis of the certificate of recovery issued, was being conducted against each of the certificate debtors.

7. The grievance ventilated in the above application has been in respect of the alleged bringing on record by way of the illegal substitution of the said applicant in place of the deceased certificate debtor No. 4, the insertion of his name in the said certificate and also the order of attachment of the properties being situate at 110, Kumar Para Lane, Kasba being claimed to be the self-required property of the said petitioner together with his wife and one Dr. Jhumur Gupta, which has also been claimed to be not inherited by the said applicant from the erstwhile defendant No. 4; nor being the fruit of the estate of the deceased certificate debtor/defendant No. 4, late Bhuvan Mohan Bose. in that application, an illegal order for issuing a notice of demand upon the said applicant has also been tended to be challenged vehemently on the ground of being both erroneous in law and fact.

8. At paragraph No. 11 of the said petition, the purported order of the Recovery Officer dated August 23, 2002, the notice of demand dated November 11, 2002 and the order of attachment dated November 11, 2002 have been expressly claimed to be "bad in law" and hence, "liable to be recalled and or cancelled or set aside."

9. In that application read alongwith the supplementary affidavit, the applicant contends that before Monday, November 14, 2002 he had no knowledge of both the original TA No. 8 of 1997 which was previously the commercial Cause Suit No. 245 of 1986 when it was pending before the Honble High Court at Kolkata; and the certificate of recovery issued on August 9, 1999 by the learned transferring Tribunal for a certificate amount of Rs. 10,53,836.53 p. issued on the oasis of the final order, passed in that T.A. Application, on July 7, 1999, though ex parte against each of the four defendants, (later becoming the certificate debtors), because he was never substituted in place of the deceased defendant No. 4 who was such defendant, which the final order was passed ex parte on July 7, 1999; nor he was connected in any way with the commercial transaction with the Banker of the defendant No. 1.

10. According to the said applicant, the knowledge as to the present recovery proceeding conducted against each of those four defendants as the certificate debtors was gathered by him on Monday, November 14, 2002, when the Joint Receivers visited the premises No. 110, Kumar Para Lane, P.O. Kasba, Kolkata and affixed the purported order of attachment on the conspicuous portion thereof in his absence and when the said applicant was served with a notice of demand issued upon him.

11. Another ground of objection to that ex parte order and the certificate of recovery has been expressly taken by the said applicant on the ground of that the said ex parte order being first a nullity and void on the ground of abatement of the said claim case as against the said deceased defendant, late Bhuban Bose, being later the certificate debtor No. 4 for want of the statutory substitution of the said defendant by the present applicant within the prescribed time limit from the date of death of the said defendant taking place on February 18, 1987, which as a matter of fact occurred during the pendency of the said commercial suit before the said Honble Court.

12. Since both the order and the certificate of recovery issued on the basis of the said order are void and nullity because of being respectively passed and issued against (he said dead person, the Recovery Officer lacks the jurisdiction to conduct the present recovery proceeding.

13. The other point of objection has been taken by the said applicant on the ground of that he has been brought on record in place and instead of the said deceased defendant, of whom he claims to be one of the legal surviving heirs, during the recovery proceeding and without giving him an opportunity of being heard; thus, causing the marked violation to occur with the traditional doctrine of natural justice.

14. Another objection of the serious nature is that such officer has exceeded the jurisdiction vested in him; and has tended to usurp or interfere with that of the Presiding Officer of this Tribunal by way of executing the necessary amendment or correction or modification of the certificate of recovery issued on August 9, 1999; and lastly, has been round violating grossly the provisions contained in Sections 26 and 27 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, [Act. No. LI of 1993].

15. It shall not be immaterial to mention, here, of that the application, as preferred by the said applicant has not been labeled with any legal provision under which it has been intended to be made.

16. Before dealing with the nature and contents of the said application, it is being highly necessary to refer to the factual background leading to the rise of the present one.

17. For such purpose. April 18, 1986 is the relevant day and date when the respondent applicant/certificate holder Bank did present, one plaint against the Calcutta Electric Lamp Works Ltd., (hereinafter being referred to as the defendant No 1), which was known at the commercial parlance as the manufacturer of high class electric lamp, If one looks at the Exhibit No, 29, Page 93 of the Evidence-on-Affidavit, and four others, including the deceased defendant No. 4 (who was incidentally the director-in-charge of the said defendant company; and was also empowered and authorised by the said company to sign and execute, on its behalf any or all papers, documents, letters, etc. being necessary in connection with any loan from the companys banker, namely, the College Street Branch of the applicant-Bank and also to use and affix the common seal of the company on the Loan A/cs., being an authorization made by the company on the basis of one Resolution adopted on April 28, 1982 in the meeting of the Board of Directors of itself), before the Honble Justice R.N. Pyne, one of the Justices of the Honble High Court at Kolkata claiming thereafter for a decree for Rs. 10,53,836.53 p against the defendant Nos. 1, 2, 3 and 4 jointly and severally; and also for a decree against the defendant No. 5 being the State of West Bengal for Rs. 1,73,901.46 p.

18. Thus, the applicant/respondent Bank instituted such commercial cause Suit No. 245 of 1986 by way of presenting the said plaint along with the twenty-five annexures before the said Honble Court at its original side jurisdiction. At that time, since the present Act was neither enacted nor any Tribunal was set up under Section 3 of itself for the reason of dealing with such commercial suit, the applicant/respondent-Bank chose the available ordinary forum of civil nature against those defendants/certificate-debtors and instituted the said suit before the Honble High Court at Kolkata by way of presenting the above plaint in connection therewith.

19. Thereafter by operation of law, the said suit stood transferred on January 16, 1997 before the learned transferring Tribunal before which the said suit stood renumbered as TA No. 8 of 1997.

20. In accordance with the provisions contained in Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the said Tribunal was pleased by its order made on March 11, 1997 to issue the respective notices upon both the applicant/ respondent-Bank and the defendants-cum-certificate debtors to appear in person or through the Lawyers or agents to be appointed by those parties before itself on September 3, 1997.

21. Again, on February 3, 1998, it revealed from the record maintained in that TA No. 8 of 1997 the envelopes sent to the defendant Nos. 1 to 4 had also returned unserved with the necessary remarks Not known by the postal authorities, whereas Mr. R.C. Ghosh, the learned Advocate appeared on behalf of the State defendant without any power from the latter.

22. On that day, the learned transferring Tribunal was pleased by its order No. 4 to direct the following:

"Record is put up as per previous order.

Learned Lawyer, Mr. R.N. Das is present on behalf of the applicant-Bank with power jointly with Learned Lawyer, Ms. Snigdha Sinha,

Learned Lawyer, Mr. R.C. Ghosh is present on-behalf of defendant No. 5 but without power.

None is present for the remaining defendants.

Record reveals that the postal packet sent to defendant Nos, 1 and 4 returned unserved with remarks not known by the postal authority.

In that view of the matter let the notice be published in The Asian Age in English and the Pratidin in Bengali with Bengali version directing defendant Nos. 1, 2, 3 and 4 to appear on 7.6.1998. A duly approved draft material be handed over to Learned Lawyer for the Bank for publication.

To 17.6.1998."

23. Such an order was, perhaps, passed after bearing in mind the direction issued by the Senior Master as an officer, duly empowered, of the said Honble Court which reads as follows :

"Presented and admitted this 18th day of April, 1986 for final disposal as commercial cause.

Defendant to file written statement".

24. Thereafter, the paper publication in the local dailies in accordance with order No. V, Rule 20(1-A) of the First Schedule to the Code of Civil Procedure, 1908 [Act No. V of 1908], was placed before the said Tribunal.

25. By an order No. 5 made on June 17, 1998 the learned Tribunal was pleased to fix August 3, 1998 for filing of the written statement at 2.00 p.m.

26. Since the defendants did not appear both on August 3, 1998 and April 7, 1999, the learned Tribunal was pleased to direct the applicant-Bank to file evidence on affidavit on June 17, 1999 and also to fix the day as above for the ex parte hearing.

27. On June 17, 1999 there was filed one evidence on affidavit affirmed by Mr. Baksi Badan Saha, the senior clerk of the applicant-Bank along with the thirty-five exhibits.

28. That day the arguments advanced by the learned Advocate were heard; and the said evidence on affidavit was also accepted by the said Tribunal.

29. At last, the said Tribunal delivered the judgment in absence of those non-participating defendants and passed an order ex parte against those defendants after holding them liable respectively for the amount of Rs. 10,53,836.53 p. to be made payable, jointly or severally by the defendant Nos. 1 to 4; and a sum of Rs. 1,73,900.40 p. to be made payable by the defendant No. 5, being a state defendant.

30. The present application has been factually, preferred by the surviving son of the defendant-certificate debtor No. 4 who was, mentioned earlier, the director in charge of the defendant company. The said applicant has contended in clear words that the attached property 110, Kumar Para Lane, Kasba, Kolkata, is absolutely a self-acquired property with which since no inheritance has any relation, the alleged order of attachment, being conditioned by the impugned substitution on the basis of inheritance, in the recovery proceeding is absolutely bad and highly illegal;

31. The other miscellaneous applicants have joined with the present applicant; while challenging their substitution and the order of attaching their respective properties, they have not only been found in taking the points of objection, appearing to be more or less similar with those expressly taken in M.A. No. 6 of 2002, but also in adopting and accepting the submission made in connection with the latter.

32. On behalf of the said applicant, Mr. H.K, Mitter, the learned Senior Counsel has appeared and has argued extensively and raised many points after objecting to the continuance of the present recovery proceeding on the basis of all illegal certificate of recovery issued which has been issued on the basis of an order suffering from the patent defect of nullity on the ground of the abatement for want of the substitution of the said deceased defendant No. 4 required to be done within the prescribed time limit.

33. After conclusion of the submission, one written note of arguments along with a list of dates has been filed on behalf of the said applicant. In that written argument, the nine points have been raised expressly for consideration of this Tribunal. Those nine points are being reproduced below but in seriatium :

"1. Whether from the written objection of the Bank to the Supplementary Affidavit of the petitioner affirmed on 4th February, 2003 it can be proved that the Writ of Summons was served on Bhuban Mohan Bose when the suit was pending in the High Court

2. Whether the Notice of the proceedings before DRT was properly served on Bhusan Mohan Bose when he in fact died on 17th February, 1987 and also whether the Bank already having the residential address of the said Bhuban Mohan Bose at 6C and 6D, Sevak Baidya Street, Kolkata-700 029 was justified in publishing the notice in the newspaper

3. Whether the ex parte order dated 7th July, 1999 (ex parte order) passed in T.A. No. 8 of 1997 is a nullity or not

4. Whether the ex parte certificate dated 9th August, 1999 bearing No. 69/99 being passed in connection with the said ex parte order 7th July, 1999 is a nullity

5. Whether the subsequent orders passed against a dead man are nullities

6. Whether the said suit has abated due to non-substitution of the legal heirs of the said defendant No. 4 within the statutory period

7. Whether the substitution of legal heirs of the defendant No. 4 can be done at the recovery stage although the defendant No. 4 has died prior to the ex parte order dated 7th July, 1999

8. Whether the Recovery Officer at all has any power to allow the substitution of the legal heirs of the defendant No. 4 when the defendant No. 4 has already died prior to the date of the ex parte order dated 7th July, 1999 on the basis of which the ex parte certificate dated 9th August, 1999 has been issued

9. Whether the Premises No. 110, Kumar Para Lane of the petitioner herein being a self-acquired property can be at all attached"

34. The learned Senior Counsel has also relied upon the authorities, namely, (i)Madan Nayak v. Hansu Bala Devi, : AIR 1983 SC 676 , paras 5, 8, 9 and 11, pages 679 to 680 (per Desai J.); (ii) Jangle v. Deputy Director of Consolidation, : (1982)(1) SCC 478 para2 (478) (per Bhagavati, J.); (iii) Union of India v. Ram Charan through his Legal Representatives, : AIR 1964 SC 215 Paras 7, 8, 9, 10, 13 and 14, pages 219 to 221 (per Raghubir Dayal J.); (iv) Firm Dittu Rameadin and Ors. v. Om Press Co. Limited, Fazilka and Ors.. AIR 1969 Paras (FB) 335 para 20, at pp. 338 to 339, Para 38, pp, 342, 341 (per Tekchand J.); (v) J. Bashyam Acharya v. G. Parthasarathi, AIR 1954 Mad, 195; (vi) Kiran Singh v. Chaman Paswan, : AIR 1954 SC 340 at para 6, P, 342 (per Venkata Rama Ayyar, J,); (vii) MAC Froy v. United Africa Co. Ltd., (1961)3 All E.R. 1169 at P. 1173 (per Lord Denning, J); and(viii) Suresh Chandra Bose v. State of West Bengal, : AIR 1976 Cal. 110 at paragraph 13, page 114 (per Sabyasachi Mukherjee, J.)

35. The respondent/applicant Bank has specifically raised an objection to the application preferred by Dr. Goutam Basu in its objection filed on Wednesday, February 5, 2003.

36. So far as the other miscellaneous applications are concerned, the applicant Bank has not filed any objection in spite of being given the opportunities.

37. The said Bank has been found in stating, in clear words, in that objection; after transfer of the suit from the Honble High Court at Kolkata to the learned Debt Recovery Tribunal, the summons was served upon the defendant; and in spite of service of summons, no one had, on behalf of the defendants ever appeared at any stage of the proceedings or had taken any steps after making such appearance in the proceedings or there had been taken any steps by the heirs of the defendant or other defendants appraising the learned Tribunal relating to the death of the defendant No. 4 in the instant proceeding, before the ex parte order was passed in T.A. No. 8 of 1997.

38. And in the relevant paragraph of its opposition, the applicant-Bank has claimed that no information as to the death of the original defendant/certificate debtor No. 4 had not since been given by the other defendants or the legal heirs of the said defendant, it could not have the knowledge as to the death of the said defendant till the date of getting the relevant material information from the Detective Agency who was appointed by itself for the purpose of finding out the assets and the properties of the defendant Nos. 2 to 4 (later becoming the certificate debtors).

39. The Paragraph No. 2 of the said opposition has been, more or less, founded on what has been contained in paragraph No. 1 for the purpose of bringing the legal heirs of the deceased defendant No. 4 on record.

40. The legal heirs of the said deceased defendant have been factually impleaded during the tendency of the recovery proceeding before the learned Recovery Officer of this Tribunal immediately after getting the relevant information relating to the death of the said deceased defendant/certificate debtor.

41. Accordingly, it has raised further a claim as to the suit [which was instituted by itself before the Honble Court and which later pertook the form of a Section 19(1) Application, when it was transferred by operation of law from the Honble Court to the learned Transferring Tribunal] that it has not abated against the impleaded but substituted heir of the deceased defendants/certificate debtor No. 4.

42. The allegation of non-prosecution lebelled against the Bank raised by the said applicant for not taking the proper steps for substitution being occasioned by the death of the said defendant has been strongly denied and disputed by the Bank by reiterating the statement contained in paragraph No. 1.

43. Again, the applicant certificate holder Bank has raised a plea that the Recovery Officer does possess the power to pass an order granting the wanted substitution of the legal heir of the deceased defendant; the said Bank has also denied and disputed that the legal heir of the said deceased defendant has no liability to repay the dues of the applicant Bank as far as the deceased defendant No. 4 is concerned.

44. The claim of the Miscellaneous Applicant that the order of recovery, notice of demand and order of judgment are either liable to be "cancelled and/or cancelled or set aside" has been strongly disputed by the said answering respondent/certificate holder Bank.

45. At Sub-para 5 of paragraph No. 8, it has been specifically contended that since the applicant-Bank has for the first time come to know of the death of the defendant/certificate debtor No. 4 from the report of the detective agency, no day-to-day explanation is required to be given in the application for substitution. The replying Bank has also refuted the allegation of negligence commissioned by itself in the carriage of proceeding by itself against the deceased defendants and while strongly refuting such allegation or accusation, the applicant-Bank has been found to stand in support of the order made by the learned Transferring Tribunal as to the paper publication. The said answering respondent has held that the said substituted service has been legally a valid one.

46. Not only that, the Bank has also filed an objection to the supplementary affidavit by the petitioner; at paragraph No. 2 of which it claims that the writ of summons in the Suit No. 245 of 1986 (United Bank of India v. Calcutta Electric Works Lamps Ltd. and Ors.) was served duly, during its pendency before the Honble Court, on late Bhuban Mohan Bose who was defendant No. 4, in the said suit, on December 1, 1986. For the reason of strengthening the above claim, the Bank has been found to have relied upon the service report/mode of service obtained from the office of the Sheriff of Kolkata dated January 31, 2003 which has been incidentally annexed to the said objection after being marked with the letter A for identification it has been found further that the certificate cannot be executed against him has also met the severe challenge from the applicant Bank; so far as the attached premises being situated at 110, Kumar Para Lane, Kolkata-700042 is concerned, the applicant/respondent-Bank has asked for the strict proof by the said miscellaneous applicant of the allegation as above.

47. The respondent certificate holder Bank has also been found in strongly supporting the impugned order dated November 18, 2002 and January 16, 2003 passed by the learned Recovery Officer of this Tribunal in connection with the on-going recovery proceeding.

48. The allegation of the wrongful, bad intention, on the part of the certificate holder Bank or the learned Recovery Officer of this Tribunal as alleged has not only been strongly disputed but has also been denied. At paragraph Nos. 9, 10 of the said affidavit, the said Bank has also refuted totally the allegation of a wrongful, deliberate act of defeating the interest of such applicant. At paragraph No. 7 of its opposition made in relation to the supplementary affidavit filed by the miscellaneous applicant, the respondent certificate holder Bank has been heard in making a counter allegation against the said applicant in the following words:

"The allegations are recklessly made in sheer Contempt of this learned Tribunal and the learned Recovery Officer and should be directed to be expunged."

49. Apart from the above, the applicant-Bank has made one application before this Tribunal praying therein that the abatement, if any, in this case be set aside after condoning the delay, if at all commissioned. That application has been accompanied by the three annexures. At paragraph No. 10 of the said application, the applicant-Bank states categorically that since it had been directed by the learned Recovery Officer of this Tribunal to furnish the details about the assets of the defendants which were, in fact, not known to the said Bank, it appointed a detective agency for the said purpose. Thereafter, the report of the said agency was received on August 13, 2002 from which it appeared that the defendant No. 4 had died on February 18, 1987. In support of such contention, the applicant-Bank has annexed one report of the said agency with the specific application for condonation of delay, after marking it with the letter C for identification. The paragraph No. 11 of that application shall appear to be self-evidentiary, when the first three lines from the top of itself shall be read. The reason for not possessing any "knowledge" as to the death of the defendant No. 4, even before August 13, 2002, who has been apply described as the Promoter-Director of the defendant company has been expressly taken out in that paragraph.

50. Accordingly, the entire paragraph is being reproduced:

"The applicant-Bank had absolutely no knowledge about the death of the defendant No. 4 before 13th August, 2002. Though the defendant No, 4 was the Promoter/ Director of the defendant No. 1, the Advocate of the defendant No. 1 also did not inform the applicant-Bank about the death of the defendant No. 4. None of the other directors of the defendant No. 4 also informed the applicant-Bank about the said death. It was only after receipt of the report of the Detective Agency on 13th August, 2002 as mentioned that the applicant-Bank to know for the first time about the death of the defendant No. 4."

51. From point of time, Tuesday, August 13, 2002 was the day and date for the applicant- Bank to come to know for the first time, the relevant fact that the impleaded defendant No. 4 had died on February 18, 1897; and within a period of only ten days i.e. Friday, August 23, 2002, therefrom, it did file an application legally required for substitution of the present applicant as the surviving legal heir of the said defendant in his place and instead. On the same day, the said application was allowed in absence of the miscellaneous/ present applicant, after resulting in his substitution and his impleadment as the defendant/ certificate debtor No. 4(a) in place and instead of the deceased certificate debtor No. 4.

52. The applicant certificate holder-respondent Bank has clearly admitted in the paragraph No. 14 of its application dated February 18, 2003 that though in the application preferred on August 23, 2002, there was not contained specifically any distinct prayer for setting aside, abatement, the respondent/certificate holder Bank has been found in submitting that in view of the facts and circumstances involved in the present matter the prayer for abatement was impliedly present in the prayer for substitution. Further, this Tribunal is also reproducing the later portion of the said paragraph:

"... the order for submission of the legal heirs of the defendant No. 4 necessarily implies setting aside of abatement, if any. However, to be on the safe side the applicant/certificate holder Bank has been advised to be make the present application for setting aside the abatement."

53. After reading cautiously and minutely into the applications, supplementary affidavit, reply by the Miscellaneous Applicant and the application for setting aside the abatement, the objections filed and preferred by the respondent certificate holder Bank and also the respective submission made by the learned Counsels appearing for the contending parties, this Tribunal deems fit and just to take into its consideration the following points for their determination:

(a) Whether the deceased defendant No. 4 was, in view of the facts and circumstances involved in TA No. 8 of 1997 via CC Suit No. 245 of 1986, at all a participating defendant before February 18, 1987 being the date of his death

(b) Whether the substitution of the said defendant, in case he shall be called a non-participating defendant in a set of the given situation is highly necessary; or instead, may be dispensed with by a trying Court; and if so, when

(c) Whether the judgment passed ex parte and against the deceased defendant No. 4 on July 7, 1999 shall be void and nullity because of being passed and pronounced against the dead person

(d) Whether the certificate of recovery issued on the basis of the order and judgment pronounced on July 7, 1999 in Transfer Application No. 8 of 1997 by the learned Transferring Tribunal which was, in fact, issued by the Presiding Officer of the said Tribunal on August 9, 1999 shall be further an illegal certificate because of its being issued on the basis of a void order in respect of which to further order is required to be made or passed

(e) Whether the application preferred by the Miscellaneous Applicant shall be treated as an application to be made under Sub-section (2), Clause (e) of Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act. 1993 (LI of 1993), instead of being called and described as an application for setting aside any order of dismissal of any application of any order passed by the Tribunal ex parte, though the application preferred by the Miscellaneous Applicant on Wednesday, November 18, 2002 has not been labelled with any legal provision under which it has been intended to be made

(f) Whether any person, despite his submission and impleadment in place and instead of the original deceased defendant, of whom such person has been shown to be the legal heir in an application for substitution, shall be permitted to take the defences being appropriate and available to the original deceased defendant in the case of setting aside ex parte decree or order, while objecting to his alleged substitution

54. Mr. Hirak Mitter, the learned Senior Counsel appearing for the Miscellaneous Applicant has drawn the attention of this Tribunal to the different legal provisions laid down in Rules 9, 12, 13, 16, 17, 19, 19(a), 20(1), Sub-rule(1) and 20(1-a)of Order V of the First Schedule to the Code of Civil Procedure as well as Rules 4, 9 and other rules of Order XXII of the said Schedule to the said Code in support of the manifold submission intended to be made by the learned Senior Counsel.

55. According to Mr. Mitter, no substitution was made within the statutory period of limitation after death of the said Bhuban Mohan Bose; and the learned Counsel emphatically stated and contended that the suit had abated even before it was transferred to the learned transferring Tribunal.

56. The applicant-Bank was negligent in the carriage of proceeding because it knew that the said Bhuban Mohan Bose, resided at 6C, Sevak Baidya Street, Kolkata, as a defendant No. 4, in respect of which the said Bank did not cause any service to be made.

57. Further, the learned Senior Counsel contended specifically that the substituted service was made after the death of the defendant No. 4. Again, Mr. Mitter contends that even for the sake of argument, if the substitution of the applicant be taken for granted, in that case it shall be further found that the alleged substitution has been found to be excessively delayed, and such substitution is barred by the Law of Limitation

58. Mr. Mitra has, in a word, sought to assail of the alleged substitution of the present applicant, which has been done without giving any opportunity of being heard to the concerned person to be brought on record.

59. While challenging the order of attachment and other orders of the learned Recovery Officer, the other applicant have raised more or less the similar point of objection and have also accepted the above submission,

60. On the other hand, Mr. A.K. Dandania, the learned Senior Advocate raised the point that the application made is likely to be treated as an application for review instead of being called an application for setting aside an ex parte decree or order.

61. The learned Advocate has been of the further view that in respect of such review application the bounden legal requirements have not been duly complied with by such applicant.

62. Secondly, Mr. Dhandania, the learned Advocate, has also contended that neither the judgment and order can be nullity on the ground of its being passed only against a dead person. The said suit has not abated against the Miscellaneous Applicant because the applicant-Bank had no knowledge of the death of the deceased defendant No. 4 before August 13, 2002.

63. In fact, Mr. Dhandania, the learned Advocate, has been emphatic in advocating the legitimacy of an application preferred by the respondent certificate holder Bank because it has been made within ten days only from the date of derivation of knowledge of the said person through an independent person or agency employed for tracing out the whereabouts of all the defendants.

64. Mr. Dhandania, the learned Advocate, has also said that by way of an order for substitution of the present applicant, the order for setting aside the alleged abatement has been impliedly allowed in the said order by the learned Recovery Officer under challenge. Further, the applicant Bank has made one application on February 18, 2003 before this Tribunal. It has been, Mr. Dhandania, the learned Advocate, has argued, meant primarily for the necessary order to be passed by this Tribunal to set aside the abatement after condoning the delay, if any, committed and to allow the substitution of the miscellaneous applicant.

65. In support of the above arguments advanced, Mr. Dhandania, the learned Senior Counsel has cited before this Tribunal the following authorities:

(i) Smt. Minati Sen Alias Smt. D.P. Sen v. Kalipada Ganguly, AIR 1997, Cal. 386 Paras 19 at p. 393-395, 20 at p. 395, 396 pps. 21 at pps. 396, 397-399 (per T. Chaherjee, J); (ii) Ramnath Sao, alias Ramnath Sahu v. Gobardhan Sao, II (2002) SLT 240=(2002) SCC 195 paragraph No. 9 p. 200 11 p201 12 at pps. 201 to 202 (per B.N. Aggrawal, J.); (iii)State of West Bengal v. Nripendra Nath Banerjee, : AIR 1992 Cal. 179 paragraph 17 at p. 184, 185 (per A.M. Bhattacharya, C.J,); (iv) Birbal v. Haralal, AIR 1953 Punjab 252; (v) Babaji Pradhan v. Master Gurubara Pradhan, : AIR 1962 Ori. 94 at Para 4, page 95 (per S. Barman, J); (vi) Smt Sakuntala Devi v. Banawari Lal, : AIR 1977 All. 551 paragraphs 4 and 5 pages 552 to 553 (per Yasodha Nandan, J.); (vii) B.M.M. Pillaidhari Amma, v. Lakshmi Amma, : AIR 1967 Ker. 135 , and lastly G. Ranagawda v. Special Land Acquisition Officer, : AIR 1988 SC 897 .

66. Before dealing with the issues framed and inventorized as above, it is being fell pertinent to give a picturesque description of the entire claim case preferred by the certificate holder Bank from the level of the High Court at Kolkata when the claim case was first instituted against the four private defendants amongst whom the deceased defendant No. 4 was one and the state defendant No. 5 to the stage of the said claim case before itself, this Tribunal has kept in its mind all the facts and circumstances involved upto the filing of the application for setting aside and of reviewing the judgment and order passed ex parte on July 7, 1999 and against the deceased defendant No. 4 and the alleged certificate of recovery being issued on the basis of the said judgment and order. The fact that the applicant Bank/certificate holder Bank has instituted the commercial cause Suit No. 245 of 1986 before the Honble High Court at Kolkata at its ordinary original civil jurisdiction against the defendants 1 to 4 and the said defendant No. 5 has not been controverted by either party.

67. Further, out of the above issues framed, the Tribunal feels it legitimate to consider the scope of abatement in respect of a defendant; and the validity of the judgment passed ex parte and against the said dead person, the certificate of recovery issued on the basis of that ex parte judgment and order and the recovery proceeding being presently conducted against all the defendants cum certificate debtor.

68. In a word, it may be viewed that the entire proceeding has been under challenge on the ground of the want or substitution or the deceased person on the surviving legal heirs within the stipulated timelimit resulting in the abatement or the same.

69. For such purpose, it is highly necessary to bear into mind the role played by the deceased defendant No. 4 upto the date of his death. For answering the said legal question, this Tribunal takes first into its consideration the dale of filing of suit against the five defendants; and secondly, it also takes into consideration whether each of the five defendants did appear, file and prefer the written statement: and each such defendant did take part in the entire proceeding by way of raking part in the framing of issues as well as leading of evidence in support of either of his specific denial or of his claim. All those that have been stated briefly hereinabove constitute, no doubt, the basic frame work being highly necessary for the consideration of the relevant provisions contained in Order XXII of the First Schedule to the Code of Civil Procedure, 1908 [Act. No. V of 19081. which has also undergone through a significant amendment of itself in the year 1976.11 is also highly necessary to note that all the incidents have taken place after February 1, 1977 being officially the prescribed date, for coming into operation of the amended provisions of itself.

70. True to say, Order XXII of the First Schedule to the Code of Civil Procedure, 1908 has been mostly invoked meant for carriage of a proceeding by a plaintiff against a dead person, though such order has been entitled as Death, Marriage and Insolvency of Parties, Before dealing with the said order, it is also being highly necessary to mention that the order mentioned above shall not apply where there is no chance or possibility of the survival of the right to sue.

71. Rule 3 of the said order relates itself with the substitution of a dead plaintiff being subject to the survival of the right to sue within the ambit of which shall not fall the personal cases or causes. Right to sue can further and for its survival be linked up with the malicious prosecution initiated by an aggrieved plaintiff in such malicious prosecution, if the aggrieved plaintiff dies, the survival of the right to sue can vanquish within a twinkling of an eye. The same may be said with regard to the suit for defamation.

72. Apart from the said Rule 3, Rule 4 of the said order has been found revolving round the substitution of the deceased defendant provided that the right to sue survives in respect of such person. Sub-rule (3) of Rule 4 of the said Order lays down following: where within the time limited by law, no application is made under Sub-rule (1) of Rule 4, the suit shall abate as against the deceased defendant. Accordingly, it may be asked what is meant by the word abatement

73. After reading Sub-rule (1) and Sub-rule (1) of Rule 4 and Sub-rules (1) and (2) of Rule 3 of Order XXII combinedly. the stage of abatement in a suit may be inferred to have emerged out when no substitution of the deceased defendant/plaintiff (as the case may be) by the surviving legal heir of himself has been made within timelimit as prescribed by the Law of Limitation. Such view has been framed, after keeping in mind the survival of the right of sue in a specific case, as one of the necessary conditions for substitution.

74. In a word, the word abatement may be shortly defined and described as the aftermath consequence of non-substitution of the deceased defendant/plaintiff in spite of the survival of the right to sue against him by the plaintiff/defendant. Here, is involved substantially the question of the substitution of the defendant.

75. Related to the above one, a defendant is entitled to such privilege; a privilege in the sense where a suit has, abated against a defendant, the real beneficiary shall be such defendant on the one hand. The looser shall be the plaintiff. The fact that the expression like which defendant shall be entitled to such privilege has been the real one for the determination of such privilege to be enjoyed by a defendant. The query may be answered easily, if Sub-rule (4) of Rule 4 of the said Order shall be read and construed in its entirety. The said sub-rule speaks of the two cases of the defendants viz. (i) the appearing but participating defendants; and (ii) the non-appearing and non-participating defendants/The conjunctive reading of Sub-rule (1) of Rule 4 with the said Rule is hereby being prescribed. To me, the strict compliance with the bounden requirements as prescribed in Sub-rule (4) appears to be a condition precedent for the enjoyment of benefit arising under Sub-rule (3) of Rule 4 of Order XXII of the Code:

76. Historically speaking the Sub-rule (4) was not incorporated in the body of the Code of Civil Procedure, 1908 prior to its amendment In the year 1976. The Sub-rule (4) of the said Rule precisely speaks of a participating defendant, then it may be asked further who shall be a participating defendant. The participating defendant shall be one who has not only made his appearance and filed the written statement but had also failed to appear and contest the suit at the time of its nearing [which should be read and substituted at the hearing of the Section 19 Application].

77. Sub-rule (4) of Rule 4 grants such privilege to the appearing and participating defendant; but not to a non-appearing and non-participating defendant by the concept of which is meant that a person who had not appeared and has failed to make and prefer the written statement; that being the basic, minimum requirements of being designated as the participating defendant. For the reason of being called a participating defendant, a defendant shall have to satisfy the two legal requirements to file and present the written statement after his appearance and to take part in the hearing of the suit which shall be read at any hearing at the post-written statement stage.

78. In the specific case of a non-participating defendant who has died, needing to be substituted, Sub-rule (4) comes to the rescue of the affected plaintiff, after empowering trying Court to dispense with the substitution of such defendant. The above legal concept may be brought home to a person if he reads the wordings expressly used in that Sub-rule (4) of Rule 4 which reads as follows :

"(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place."

79. In a word, the Sub-rule (4) has been found in saving a judgment and an order being passed against a dead person who has not been substituted by the surviving legal heirs from the scourge of being assailed of being a nullity or a void one.

80. On the other hand, that Sub-rule (4) closes the door of the enjoyment of the effect and benefit of abatement, which has been no doubt, set out in Sub-rule (1) of Rule 9 of Order XXII which lays down the following: "Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action"; to a non-participating defendant, by using expressly the non obstante clause in the body of itself which reads as follows :

".....notwithstanding the death of such defendant".

81. Such inference is being drawn after reading as a whole the Sub-rules (1) to (4) of Rule 4 of Order XXII of the Code.

82 The Sub-rule (4) speaks rigorously of the continuance of the validity of a decree which shall have the same force and effect as if it has been pronounced before death has taken place. In other words, the said Sub-rule (4) forms an exception to Rule 9(1), because in a situation covered by the aforementioned rule that has vested the discretionary power into a trying Court to dispense with the substitution of a non-participating deceased defendant and to assign the fullforce and effect to a judgment to be pronounced against such typical defendant, Sub-rule (1) of Rule 9 has been given no functionary role.

83. Mr. Mitter, the learned Senior Barrister has said that both judgment and order are void ab initio; on the ground of that the said judgment and order has been pronounced against the dead person who is none but late Bhuban Mohan Bose, the deceased certificate debtor No. 4, because of the permissible occurrence of abatement in view of the above legal provision,

84. Mr. Milter has contended further and suggested that where there is a void order, the recovery proceeding being founded and being commenced pursuant to such void order shall also be the further nullity.

85. But Mr. Mitter has never brought to the knowledge of this Tribunal the following facts : whether the deceased Bhuban Mohan Bose had appeared before the Honble High Court and whether the deceased Bhuban Mohan Bose had filed the written statement, before he passed away on February 18, 1987 being the date of his death.

86. Truly speaking, the judgment and order was passed ex pane; but it can never be said that either of the private defendants has fulfilled the basic minimum requirements as postulated in Sub-rule (4) or Rule 4 or Order XXII.

87. The certificate holder/opposite party Bank has submitted before this Tribunal the certificate of the service of writ of summons issued under the sign and seal of the Deputy Sheriff of the Honble High Court at Calcutta, being popularly called a Court Officer as to the fact that in spite of the due service upon each of the four defendants, neither of them has appeared before the said Honble Court.

88. Secondly, Mr. Mitter has never said that in spite of rendering the material but relevant information as to the date of death of the said deceased defendant, the applicant Bank sat idle and had shown gross negligence in bringing on record within the stipulated timelimit the surviving legal heir of the said defendant.

89. Let such finding be kept aside for a moment.

90. The Tribunal should be inclined in laying emphasis on the role performed by the deceased defendant No. 4 before the transfer of the commercial cause suit instituted before the Honble High Court to the learned Transferring Tribunal.

91. The deceased defendant No. 4 did not appear before the Honble High Court in spite of the service which is being taken for granted as a valid service because of the fact that such service had been occasioned by the prestigious office of the Sheriffs, under the Indian Sheriffs Act, being a dignified Court officer and a disinterested person. Even on a cursory glance made on the said commercial suit, when pending before the Honble High Court, it may be legitimately inferred that the deceased defendant has always kept himself away from (he judicial domain; and also not preferred any written statement to establish his character as the participating defendant on the satisfaction of the minimum legal requirements that are the appearance of himself and the filing of written statement.

92. Mr. Mitter has argued that the said suit had abated during the pendency of itself before the Honble High Court. According to Mr. Mitter, the dead suit was transferred to the learned transferring Tribunal because of its standing abated against the deceased defendant long before its statutory transfer.

93. Mr. Mitter has also laid stress on the date of death for the purpose of limitation under the Law of Limitation describing ninety days therefrom.

94. Mr. Mitter concluded that since the applicant-Bank has failed to bring on record the surviving legal heir or heirs within the stipulated ninety days from the date of death of the deceased defendant No. 4 by way of the substitution of the latter, the suit has already abated before its transfer to the learned transferring Tribunal.

95. Mr. Mitter has also vehemently criticised the proceeding before the learned Transferring Tribunal because such has been an illegal one. In support of his contention, Mr. Mitter has cited two authorities one of which being an English one passed by the Privy Council in the matter of Macfroy v. United Africa Co., (supra) (per Lord Denning J.) in which His Lordship precisely enunciated, while speaking for the Judicial Committee of the said Council, the enduring distinction between an order being void and that becoming "voidability"; whereas the other one was for the view; there shall be required no further order on a void order, framed by the highest Court in the case of J. Beslingam Acharya v. G. Parthasarathi, (supra); (per Venkata Rama Ayyar, J), His Lordship was further pleased in Macfroy v. United Africa Co. case (supra), to observe that no Court has ever attempted to lay down a decisive test for distinguishing between the above two; but one test which is often useful is, "to suppose that the other side waived the flaw in the proceedings or took some fresh step after knowledge of it. Could he afterwards, in in justice, complain of the flaw Suppose for instance in this case that the defendant, well knowing that the statement of claim had been delivered in the long vacation, had delivered a defence to it Could he afterwards have applied to dismiss the action for want of prosecution, asserting that no statement of claim had been delivered Clearly not. That shows that the delivery of a statement of claim in the long vacation is only voidable. It is not void, it is only an irregularity and not a nullity. It is good until avoided. In this case, the statement of claim not being avoided, it took effect at the end or the long vacation and the time for defence then began to run. Likewise when the plaintiffs signed judgment in default of defence, that too was voidable but not void. It was not a nullity. It was therefore a matter for the discretion of the Court whether it should be set aside or not."

96. But Lord Justice Denning did not permit to speak against the traditional discretion of a Court in arriving at a finding that an order which is likely to be set aside has been actively an order, void and a nullity.

97. After showing the deep respect from the core or heart to the above legal proposition, it may be safely asked to the judicial conscience of itself: whether the above observation shall find a suitable situation here for its proper and justified application.

98. I am also not doubting, an order against a dead person shall be a void one where a suit has already abated for non-action. But I am being of the view that within the framework of the Order No. XXII of the First Schedule to the Code of Civil Procedure, 1908, the abatement of a suit is not everlasting; for the remedy against such an abatement has been expressly laid down and prescribed in Sub-rule (2) of Rule 9; and for the said specific reason the said legal provision may be quoted here:

"The plaintiff for the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit."

99. The Sub-rule (3) has also prescribed the adoption and the application of the provisions of the Section 5 of the Limitation Act in the case of a belated application to be made under the aforequoted Sub-rule (2) of that Rule. In a word, no phraseology like an "everlasting abatement" can be possibly coined or given rise to. On the other hand, Order XXII gives a detailed picture of the process of substitution and abatement both against the plaintiff and the defendant.

100. In the light of the test as formulated in Order XXII under the Sub-rule (4) of Rule 4 of itself, it may be further asked that whether the defendants had preferred the written statement; whether the defendants (including the deceased defendant No. 4) had participated by way of making their appearance and satisfied those basic minimum requirements in the suit before the final order being passed ex parte in connection with the said suit.

101. On a careful examination of the materials on record, this Tribunal is finding every time the no-reply in respect of the above two basic requirements. So far as the first facet that the order being the ex parts order dated July 7, 1999 is void and a nullity because of its being passed against the deceased defendant, late Bhuban Mohan Bose is concerned, this Tribunal is holding the view that the said order cannot be, by any standard, called a void one on which no further order is legally required to be made.

102. Mr. Mitter has, in support of his contention, afforded to draw the support from the different authorities including the judgment pronounced by the Apex Court which may be, in a word, called the "Pre-Amendment Authorities".

103. The Code of Civil Procedure (Amendment) Act, 1976 is responsible for bringing are markable, significant change in respect of the Code of Civil Procedure which procedurally regulated the judicial affairs before its amendment; Section 73 of the said Amendment Act, which has prescribed that Sub-rule (4) would be necessarily inserted into the body of the said Code, did actually come into force with effect from February 1, 1977.

104. Before such amendment, the different High Courts of the Country were of the conflicting views, as a result of the insertion of the said sub-rule, the non-substitution of heirs of the defendant who was merely a defendant but not a participating defendant before his death does not cause the abatement of a suit or an appeal. The Madhya Pradesh High Court had an occasion to hold valid and effective, as the lawful existing order, the non-abatement of a suit on the ground of non-substitution of the heir of pro-lessor who was a pro-defendant in an eviction suit and who did never appear in the suit nor even filed any written statement. The above version came from the said Honble Court in the case of Md. Harun v. Central Bank of India, : AIR 1994 M.P. 24. Again, the Rajasthan High Court rose to an occasion where was substantially involved the issue like whether the suit despite the service of summons upon a defendant who did not contest the same would abate for want of substitution of such non-participating defendant. The Honble Court took the help of Order XXII Rule 4, Sub-rule (4) of the said Code, which has been discussed earlier. Such situation has truly arisen in the case Badami Lalo v. Harshavardhan, : AIR 1994 Raj. 9 , being a post amendment authority. The said Honble Court has further held after being empowered and strengthened by the provisions contained in that sub-rule, that the power of the Court to exempt the plaintiff from the duty cast upon such plaintiff can bringing on record the legal representatives of the defendant who did not appear or file the written statement or file the same, after having power to contest the suit on the hearing is not fettered by the Law of Limitation nor shall be hit by a timelimit of ninety days after which as against the deceased a suit or proceeding must be ordinarily doomed to have abated; and the Court can thereafter grant such an exemption. The above view was framed by the said Honble Court in the year, 1990 in the case of Girdharilal v. Lakshmi Narayan, : AIR 1990 Raj. 14 . The same is the view of the Honble High Court at Patna. According to the view framed by the said Honble Court a trying Court can dispense with the substitution of the legal heirs of the deceased defendants even without setting aside the abatement not expressly at any stage of the suit before delivery of judgment. The Assam High Court has also been found in holding the same view. Similar view has also been taken by the Honble High Court at Delhi.

105. Side-by-side with the above view, the applications preferred by the certificate holder Bank on February 18, 2003 made before this Tribunal for first setting aside the order of abatement and then, allowing the belated substitution of the Miscellaneous Application of the deceased defendant No. 4 have been taken up for consideration. The said applications have also been accompanied by one Section 5 Application under the Limitation Act, 1961 for the reason of condoning delay committed in preferring such an application. In the said application, the applicant-Bank has expressly stated that it was ignorant of the date of the death of deceased defendant, later becoming the certificate debtor No, 4, and was not having any knowledge of the said deceased defendants death; the said applicant Bank has also been found to take help from the language of Rule 19-A of Order No. V which has been, in fact, inserted into the body of the said order by dint of an amendment of the said Code caused to be occurring in the year 1976 by the Honble High Court at Kolkata (hereinafter referred to as the Kolkata Amendment, laying down: "19-A. A declaration made and subscribed by a serving officer shall be received as evidence of the facts as to the service or attempted service of summons.")

106. Rule 10-A of Order XXII specifically casts an onerous duly upon a pleader appearing for a party to a suit to appraise the Court of the death of that party, when he comes to know of such death. The applicant-Bank has clearly claimed as it had not been assisted by the learned Advocate appearing for the said parties or for the other party before the Honble Court during the pendency of the commercial cause suit, it was not possible for itself to know the date of death of the said person. Further, the said Bank has categorically claimed that it is not its duty prescribed by law, for making the regular enquiries from time-to-time about the state of health or existence of the said deceased defendant.

107. Though there was presumably completed the due Sheriff service upon each of the defendants on December 1, 1986 it failed to gather knowledge as to the date of death of the deceased defendant. Accordingly, the Bank was absolutely in dark position about whether the deceased defendant No. 4 was alive or dead. The applicant-Bank has specifically stated, at paragraph No. 3 of its application that the defendant Nos. 1, 2 and 3 had entered their respective appearance in the said suit filed in the Honble High Court at Kolkata, whereas the deceased defendant had not done such, This relevant fact shall appear evidently from the following language used in para-3, p.2 of the said application

"The defendant Nos. 1, 2 and 3 had entered appearance in the said suit filed in the Honble High Court, Calcutta to Sri Anjan Chakraborty, Advocate, Room No. 4, Bar Association, High Court, Calcutta"

108. As such defendant No. 4, being the defendant by dint of being the guarantor in respect of the loan granted by itself to the defendant company No. 1 of which the former was also the promoter-director and who was found in executing in the various Banking documents as the promoter-director of the said defendant company, and after being empowered and authorized by a resolution adopted in the meeting of the Board of Directors of itself under the chairmanship of himself, did not appear, the Bank is expressly alleging, in spite of the due service of the writ of summons, being evidently supported by the certificate obtained on February 14, 2003 from the deputy Sheriff of the Office of the Sheriff at Kolkata which speaks of the following:

"This is to certify that three copies of the writ of summons with three copies of plaints served on 1.12.1986 at about 2.00 p.m on Mr. J. Dutta, an authorized agent of the defendant Nos. 2 to 4 therein named as per receipts endorsed thereon by Mr. S. Banerjee, one of the Sheriffs bailiffs.

And also served on the 1.12.1986 at about 2.00 p.m., a copy of the writ of summons with a copy of plaint on Mr. J. Dutta. an authorized representative for the defendant No. 1 therein named and also served on the same day at about 2,30 p.m, another copy of the writ of summons with plaint on the receiving clerk of the defendant No. 5 therein named as per receipt endorsed thereon by M. Majumdar, one of the Sheriffs serving officers,

And another copy of the writ of summons along with copy of plaint was sent by registered post with A/D for each of the defendant Nos. 1 to 5 therein named at their respective addresses mentioned in the plaints. And received undelivered packets for defendant Nos. 1 to 4 on 7.1.1987 marked as Not known and a letter from Superintendent of P.O. for defendant No. 5 on 3.11.1987, that the said defendant was keeping out of the way for the purpose of avoiding service,"

109. The paragraph No. 6 of the said application has also been dedicated to the several efforts for procuring the appearance of the impleaded defendants including the deceased defendant No. 4, According to itself, after transfer of the said suit by the operation of law to itself, the learned transferring Tribunal was pleased to issue the legal notices of transfer upon each of the contending parties including the state defendant. Except the said defendant being the State of West Bengal, none of the four defendants has appeared at all. In the judgment pronounced ex parte on July 7, 1999 in Transfer Application No. 8 of 1997, the learned Presiding Officer was pleased, while delivering judgment, to observe the following:

"Summons were duly received by defendant. No written statement appears to have been filed by any of them in the suit."

110. In absence of the defendants, the learned transferring Tribunal took into consideration the thirty-five documents as being the pieces of evidence. The learned transferring, Tribunal was pleased to describe the defendant Nos. 2, 3 and 4 as the guarantors being held liable to the payment of the Banks dues. Even at that stage, none came forward.

111. The entire attitude of the defendants including the defendant No. 4 was to flee from Justice and to cause the abuse of the same--being the specific allegation raised by the Bank.

112. The learned Advocate appearing for the miscellaneous applicant has labelled an allegation of negligence, sheer against the Bank. The learned Advocate has also taken the plea that in spite of knowing that as the defendant No. 4 did also reside at 6C, Sevak Baidya Street, Kolkata-700026, it did not cause service thereon. So far as the allegation as such is concerned, the Tribunal leaves it open for a couple of moments herefrom.

113. After finding no alternative to disclose the property particulars in relation to the defendants and in strict compliance with the order by the learned Recovery Officer in connection with the recovery proceeding, it was compelled to appoint a detective agency for the very purpose of gathering the material but relevant information about the defendants. The said agency submitted its report before the applicant-Bank on August 13, 2002. Paragraph No. 3 or the said report brings to light the relevant fact that late Bhuban Mohan Bose expired on February 18, 1987 at Kolkata and was cremated on the same day; the copy of death certificate No. 133/CMC (Health Deptt.) was enclosed, for the Banks record therewith. Not only that at paragraph No. 4, the relevant facts were necessarily disclosed :

"Late Bhuban Mohan Bose having his own 3 storeyed building at 6/C and 6/D, Sebak Baidya Street, Kolkata at ward No 82. He also inherited land and old house at his native place Rajerhat, Bishnupur, 24-Parganas (N) under No. I Gram Panchayat during our investigation it revealed that long back he sold all the land and building and shifted to Kolkata. The one portion of 3 storeyed building premises No. 6/C and 6/D. The 6/D portion was rented to Mr. Sanyal by late Bhuban Mohan Bose. The portion No. 6/C is occupied by two brothers of late B.M. Bose and ground floor of the house was converted as medical chamber by his only son Dr. Gautam Basu-MBBS FRCS-Orthopaedic Surgeon."

114. So, according to Law, whether February 18, 1987 being the date of death would be the day for commencing or running of time against the applicant Bank or whether August 13, 2002 is to be considered the day responsible for the application under the provisions of Limitation Act, after being the day for derivation of knowledge as to that late Bhuban Mohan Bose died on February 18, 1987.

115. Mr. Hirak Mitter, the learned Senior Counsel has specifically relied on Madan Nayak v. Mrs. Hansu Bala Devi, (supra); again reliance has been placed on a full bench judgment of the Punjab High Court in the year 1960 in the case of Finn Ditto Rameadin v. Om Prakash Co., Fazilka; on the matter of Jungli v. Deputy Director of Consolidation, (supra) and lastly, Union of India v. Ram Charan, decided by Supreme Court in the year 1963, and reported (supra). Out of such authorities, the case of Union of India v. Ram Charan (supra) needs the special attention to be given to itself. Summarily, it may be said after the proper understanding of the ratio decidendi as propounded in the above case through Raghuhir Dayal, J. (ate His Lordship was then): an abatement of a suit can be set aside even in a belated case or an excessively time-barred one, provided that the Court which has been about to set aside such abatement has been pleased with the explanation given for delay by the delay committing applicant as to how he has been prevented from bringing on record the surviving legal heirs or representatives of the deceased defendant within the period as specifically prescribed by the Law of Limitation. Factually speaking, the Highest Court was through Raghubir Dayal, J. (as His Lordship was then), pleased to reject the application of the Union of India because the Union of India failed to satisfy the said Honble Court with the explanation offered for the fact that it was prevented by the sufficient cause of not bringing within the scheduled timelimit the surviving legal heir of the deceased. Such appeal stemmed from a money decree obtained by the deceased Ramcharan against the Union of India on January 6, 1995. In that authority, an abatement of a suit or an appeal has not been given an everlasting character; but an abatement of a suit or an appeal has been made, on the other hand, subject to a complete functional process, though the Supreme Court was of the view that the date of death may be the real and substantial date for the law of limitation to be applied to any substitution; but such a date of death shall not be final and deterministic in bringing an end to an ongoing legal process. In the event of the judgment be read, as a whole it shall appear evident that the Divisional Engineer. Telegraph, Ambala Cantonment of the Union of India was the person who had the personal knowledge. The said Divisional Engineer erred grossly in averring in the said affidavit that it was verified on the basis of his personal knowledge. This Tribunal should not forget to make mention that the real beneficiary of such abatement would be the person who is being intended to be brought on record; whereas the real looser shall be no doubt the person, intending to bring the former on record.

116. The Madan Naik case (supra) is a family case for a declaration and confirmation of the exclusive possession in respect of a tank and its embankment which was in village Dhari in the State of Bihar. For such purpose, one Jogendra Naik and two others filed a declaratory suit bearing No. 81/11 of 1952/54 against Madan Naik and five others in the Court of Additional Munsif, Giridih. During the pendency of the first appeal before the First Additional Subordinate Judge, Hazaribagh, Jogendra Naik, the decree holder though passed away on July 10, 1955 as the respondent No. 1, the legal surviving heirs of such person were failed to be brought on record by the appellant Madan Naik within timelimit of ninety days; thus, resulting in the abatement of the said appeal. As a result, though the first appeal was dismissed on the non-meritorious abatement ground, the second appeal was consequent, thereafter, Honble High Court at Patna was pleased to remand the matter to the first Appellate Court for setting aside of an order of abatement and the substitution of late Jogendra Naik by his surviving legal heirs and representatives. The first Appellate Court did decline to allow such application, as a result of which the right to appeal did occur in favour of Madan Nayak under Order XLIII, Rule 1(k) of the First Schedule to the Code of Civil Procedure, 1908 laying down expressly: "an order under Rule 9 of Order XXII refusing to set aside the abatement or a dismissal of a suit." Thereafter, Madan Nayak preferred the second appeal before the learned Single Judge of the Honble High Court and also the appeal against such refusal to set aside the order of abatement. The learned Single Judge of the said Court was pleased, while hearing the second appeal for its admission purpose under order XLI Rule 11 read along with Order XLII Rule 2 of the said code, to disallow the second appeal on the one hand and allow the appeal under order LXIII Rule 1, Clause (k) of the said Code. The aggrieved respondent preferred a Letters Patent appeal under Clause 10 of the Letters Patent (Patna) before the Division Bench of the said Honble Court. The said Division Bench of the Honble Court being the appellate forum from the appellate decree or order of the learned Single Judge of the said Court was pleased to set aside an order of the learned Single Judge; hence, the present appeal laid before the Supreme Court. At paragraph No. 5 of its judgment, the Highest Court read and construed Order XXII Rule 11 of the Civil Procedure Code read together with Order XXII Rule 4 after making the same obligatory for a person to seek substitution of the heir or the legal representatives of the deceased defendant/respondent, if the right to sue survives. Such substitution has to be, according to Desai J. (as His Lordship was then) sought or made within the time prescribed by the Law of Limitations; in case no such substitution in a suit or appeal is made according to the legal requirements, prescribed in the paragraph No. 5 of its judgment in the case of Madan Naik (supra) the suit or the appeal shall abate. But the Tribunal does not forgot to take not of the law enumerated by His Lordship while speaking for the Highest Court in the case as above where such abatement has again not been permitted by the Highest Court to take the form of an everlasting one. Such shall become evident from the following observation of His Lordship :

"....no specific order for abatement of a proceeding under one or the other provision of Order 22 is envisaged, the abatement takes place on its own force by passage of time. In fact, a specific order is necessary under Order 22 Rule 9, C.P.C. for setting aside the abatement."

117. True to say, Sub-rule (2) of Rule 9 has created a right in favour of a plaintiff or a defendant or any other class of persons who have been found to have suffered a lot due to an abatement in a proceeding in which substitution of the deceased opposite party was required to be made within the prescribed timelimit, to make an application before the Court passing an order that the said proceeding has abated for want of such substitution for an order to be specifically made to set aside the "abatement or dismissal" of the suit or appeal on the ground of its abatement. For such purpose the said plaintiff, assignee or receiver or any class of person shall establish before the said Court and prove to the satisfaction of the latter the fact that he was actually prevented by any sufficient cause from continuing the said proceeding. Again, for the enjoyment of such right, the satisfaction of the Court which shall set aside the abatement or dismissal is a condition precedent.

118. Further Sub-rule (3) of Rule 9 has also created a privilege of making an application in the case of a belated or excessively time-barred application for setting aside an abatement and substitution which shall be made under Sub-rule (2). Sub-rule (3) of that Rule has provided such remedy by way of prescribing that "the provisions of Section 5 of the Indian Limitation Act, 1963 shall apply" to the above class of application.

119. This Tribunal is also accepting the view canvassed before itself that the abatement shall take place by its own force and by passage of time, but with the addition of the following lines that such automatic abatement shall take place or emerging in a typical situation or a case where the person under an obligation to substitute the deceased other side of himself within time or has refrained himself from taking any action under the aforementioned sub-rule of Rule 9. In other words, it may be safely said that the abatement of a proceeding or a suit or an appeal shall take place automatically only in the case of "no action" by a person under such obligation for substitution, according to both the judgments discussed above the remedy has been advanced in Sub-rule (2) of Rule 9 of the said order. The stage that a suit or an appeal has automatically abated cannot be thought of until a person under such obligation for substitution has been found in sitting idle and not taking any step for setting aside an abatement under Sub-rule (2) of Rule 9.

120. Those two authorities are, no doubt, the pre-amendment authorities; yet the application filed on February 18, 2003 by the Bank may be dealt with in the light of law enumerated hereinabove. Factually, Late Bhuban Mohan Bose, the defendant No. 4 died on February 18, 1987 during the pendency or the commercial cause suit No. 245 or 1986 before the Honble High Court wherefrom the said suit stood transferred without the substitution of the deceased defendant No. 4 to the learned transferring Tribunal. The Bank has admitted, that it factually had no knowledge of such death. Again, it cannot be denied that no pleader even the learned Advocate appearing on behalf of the defendants Nos. 1, 2, 3 informed the Court of the above date of death of the said deceased defendant. The applicant-Bank was consequently in a dark situation as to the above material fact; thus, resulting in no action to be taken for the substitution of such deceased defendant. In such prevalent situation the said suit has consequently and logically abated on its own force and by passage of time.

121. In such factual background the applicant-Bank can establish before this Tribunal those material facts as the constituent reasons for the sufficient cause, "for not carrying out the carriage of justice" against the deceased defendant.

122. It has been argued forcefully that a Court, which is about to deal with Section 5 application for the purpose of the substitution of the deceased defendant or plaintiff by the surviving legal heir or the legal representative of himself at a belated stage or excessively a time-barred one, shall see and examine only whether the applicant has been negligent or ignorant in knowing the date of death of the person concerned and the said applicant has shown the sufficient reason as to why he has been prevented from knowing the date of death, thereafter bringing on record those legal heirs or representatives within the stipulated time-limit. Where it has been established that there is a sufficient cause or reason sufficing the claim of (he belated substitution as well as that for setting aside an order of abatement of the proceeding, in that case any allegation of ignorance, negligence, if labelled, against the said applicant shall be without any effect. For the reason of substantiating the above submission the learned Advocate appearing for the applicant-Bank took the necessary assistance from the authority of Rain Nath Sao alias Ram Nath Sahu v. Gabardhan Sao, (supra), Shortly, in that judgment the only issue was whether there is any necessity of conferring a liberal interpretation upon the expression or "sufficient cause", instead of laying emphasis on the so-called pedantic approach prescribing the rigid day-to-day explanation as to delay committed by a prospective actor. At paragraph 7 of the judgment pronounced in Ram Nath Sahus case, B.N. Agarwal, J. was pleased, while speaking for the highest Court, to hold the view that : "The expression sufficient cause within the meaning of Section 5 of the Limitation Act, 1963 (hereinafter referred to as the), Order XXII Rule 9 of the Code of Civil Procedure (hereinafter referred to as the Code) as well as similar other provisions and the ambit of exercise of powers thereunder have been the subject-matter of consideration before this Court on numerous occasions. In the case of State of West Bengal v. Administrator, Howrah Municipality, while considering scope of the expression sufficient cause within the meaning of Section 5 or the, this Court laid down that the said expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party."

123. In addition to the above, His Lordship had been further pleased to consider the case Sital Prasad Saxena v. Union of India, : AIR 1985 SC 1 =(1985) 1 SCC 163 , wherein the Apex Court was dealing with a case wherein during the pendency of a second appeal the appellant died and the application for substitution, which was after condoning delay and setting aside abatement, filed after two years by the heirs and legal representative was rejected on the ground that no sufficient cause was shown and the appeal was dismissed to have already abated. When the said matter was brought to the knowledge of the Apex Court, the appeal preferred was ordered to be allowed, delay in filing the petition for setting aside the abatement was condoned, abatement was set aside, prayer of substitution was granted; and lastly the Apex Court was further pleased to remand the appeal preferred before itself to the High Court to dispose of the said appeal on merits. In that authority (in particular at SCC p. 166, para 6) it was further observed by the said Court: "....that Courts; should recall that what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties."

124. The case of Rama Ravalu Gavade v. Sataha Gayadu Gavade, : (1997) 1 SCC 261 , was another one of the same nature and in that case the Highest Court was found reiterating its view framed in the case of State of West Bengal v. Administrator, Howrah Municipality, as well as in the case of Sital Pasad Saxena v. Union of India, At paragraph 10 SCC 200 of the authority in Ram Nath Sahu v. Gobardhan Sao (supra) it may be seen that the said Court adopted the same attitude and was also, applying the test of the liberal approach upon the concept of the "sufficient cause" and lastly, the Court was pleased to condone the delay in Ram Nath Sahus case. the observation made by the Honble Justice K.T. Thomas in the case or N. Balakrishnan v. M. Krishnamurthy, VII (1998) SLT 334=IV (1998) CLT 63 =: (1998) 7 SCC 123 , which is as follows: though "it is axiomatic that condonation of delay is a matter of discretion of the Court, Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay committed is within a certain limit". "Length of delay is", according to K.T. Thomas, J. "no matter, acceptability or the explanation is the only criterion". Perhaps the above observation His Lordship was pleased to make has been founded on the primary function, since the time immemorial, of a Court to adjudicate the dispute between the parties and to advance the substantial justice. At paragraph 11 of R.N. Sahus case the Honble Justice B.N. Agrawal quoted with approval the observation made by the Honble Justice K.T; Thomas at paragraphs 11, 12 and 13 (SCC pp 127-128).

125. The observations made by both K.T. Thomas and D.N. Agrawal, JJ. have enabled this Tribunal to understand to the law on condonation of delay in such way: "Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy, the law of limitation is thus founded on public policy. It is enshrined in the maxim interest republicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislalively fixed period of time", At paragraph 12 of the case of M. Balakrishnan v. M. Krishnamurthy the effect of refusal to condone, delay has been brought to light. Actually, any refusal to condone delay shall ultimately result in foreclosing a suitor from putting forth his case.

126. The learned Advocate has also referred to and relied on the guidelines as propounded by the High Court in the case of C. Ramegowda v. The Special Land Acquitition Officer, Bangalore, (1998) 2 SCC 142=: AIR 1988 SC 897 , the Collector, Land Acquisition v. Katiji, : AIR 1987 SC 1353 (supra). In those two celebrated cases the liberal approach has been prescribed to be applied to condone delay committed by a Government. The said guidelines may be applied in the instant case for a number of reasons, namely : the setting up of the applicant-Bank under the Nationalisation of Banks Act, 1970 to carry out the Banking business under the Banking Regulation Act, 1949, its size, number of persons employed by itself, a bureaucratic organisation possessed by itself which shall consist compulsorily of the several departments and the inevitable interaction between those, the dilly-dally attitude adopted and applied every now and then by the employed persons in such large scale organisation in arriving at a decision whether to act or initiate action to be performed by itself, etc. Those guidelines have been framed empirically by the Highest Court after bearing in mind the above salient features of the Government, a Government company or any other authority falling within the purview of Article 12 of the Constitution of India and even the large scale private organization. Here, I should not forget to make mention one famous book named Love With Dr. Leacock--a book that was liked much by the sincere students of the post graduation in Social Science including the Political Science, Economics and Sociology during the early Seventies of the last century. That book inalienably associated itself with the steady growth in size and business in dying and cleaning of a shop in USA and its ultimate character of being a primary organisation being lost and, lastly, its conversion through a constant process in the large scale bureaucratic organisation where none including Kingsley Davis and Charles Cooley can think of the governance of the direct, close, physically proximous relationship between the master and his huge servants, the employer and the employed persons. In the International Encyclopaedia of Social Sciences, the dynamics of a bureaucratic organization have been given a detailed discussion ranging from the time of Max Weber, the famous German intellect who coined and popularised, for the first time, the concept of bureaucracy.

127. The learned Advocate has also been found in getting the necessary help from the case of State of West Bengal v. Nripendra Nath Banerjee, (supra), which has been in fact dealt with by the Division Bench of the Honble High Court, each of the member Judges of which was pleased to deliver the separate judgments. In the concurring judgment pronounced by A.M. Bhattacharjee, J. and particularly at paragraph 17 pp. 184-85 of itself His Lordship was pleased to observe the following:

"...our Apex Court has conceded the necessity of a somewhat different approach while considering the question as to whether the Government has been able to make out a sufficient cause for extension of time and condonation or delay in its favour."

128. Not only that, the above two authorities also constituted the basic fabric of the solid and acceptable observations framed by His Lordship.

129. What shall then constitute the sufficient cause The learned Advocate appearing for the applicant-Bank has not only refuted in bold words the various allegations raised by the miscellaneous applicant against the Bank, but also has shown the reasons for explaining thereafter why it has not been able to continue the proceeding against the said dead person. To sum up the factors that have constituted the basis or sufficient cause are many; the learned Advocate has relied substantially on that the Bank had no relevant time knowledge as to the date of death or the deceased defendant; for the reason of gathering or acquiring knowledge about such death the learned Advocate claimed on behalf of the applicant-Bank that it was absolutely well nigh impossible for such a large scale bureaucratic organization to keep the constant watch or eye on or to get itself informed of the state of health and existence of such defendant which has appeared to me as the re-echoing of the finding made by the Honble Justice Raghubir Dayal in the case of Union of lndia v. Ram Charan (if one takes into consideration the paragraph 9 of the said judgment pp. 219) and of the observation made by the highest Court in the case of Sital Prasad Saxena v. Union of India at SCC p. 166, para 6. Secondly, the learned Advocate has clearly stated that Tuesday, August 13, 2002 was the relevant day and dale for the knowledge acquired by the applicant-Bank as to the date of death of late Bhuban Mohan Bose taking place on February 18, 1987 at Kolkata, when the commercial cause suit No. 245 of 1986 was pending before the Honble High Court at its ordinary original jurisdiction.

130. The learned Advocate has been further found in insisting on that the specific allegation or negligence, non-action made against itself is without any substance because within a period of ten days therefrom i.e. on August 23, 2002, it had filed an application for substitution of the heirs of the deceased defendant No. 4 in his place and instead. The allegation or ignorance as well as inaction on the part of the applicant Bank have met the severe challenge from itself.

131. The material fact that the commercial cause Suit No. 245 of 1986 had abated long ago i. e. May 16, 1987, has been incidentally accepted by both sides: it is also an undisputed relevant fact that the said suit has been transferred under Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 to the learned transferring Tribunal after its abatement.

132. The application filed before me by the applicant-certificate holder Bank on February 18, 2001 has been round in containing in detail the reasons for taking such action, though belatedly, for bringing on record the miscellaneous applicant in place and instead of the deceased defendant No. 4. At paragraph No. 3 the applicant-Bank has categorically stated that whereas the defendant Nos. 1, 2 and 3 had entered appearance in the said suit filed in the Honble High Court at Kolkata through Mr. Anjan Chakraborty, Advocate, High Court Bar Association, Room No 4, the deceased defendant No. 4, who was the promoter-director of the defendant company who was authorized and empowered by a resolution adopted in the meeting of the Board of Directors to sign, to use the seal of the defendant company and to execute the necessary thirteen Banking documents/commercial documents did not appear. Those thirteen documents were also mentioned in the pages 3 and 4 of the said application. This Tribunal has also examined each of such documents like its predecessor incumbent. At paragraph No. 11, the applicant-Bank did take the reason why it had not been able to gather information or knowledge as to the date of death of the said deceased defendant No. 4. Perhaps, the said paragraph has since been founded on a duty cast upon the pleader appearing for any party to apprise the trying Court of the relevant material fact as to the death of any person which has come to his knowledge. Similar onerous duty has also been prescribed in 10-A of the said Order which reads as follows:

"Duty of pleader to communicate to Court death of a party--Whereas a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and for this purpose, the contract between the pleader and the deceased party shall be deemed to "subsist".

133. It is for the reason, as stated above, let me quote the said paragraph :

"The applicant-Bank had absolutely no knowledge about the death of the defendant No. 4 before 13th August, 2002. Though the defendant No. 4 was the Promoter/ Director of the defendant No. 1, the Advocate of the defendant No. 1 also did not inform the applicant Bank about the death in the defendant No. 4. None of the other directors of the defendant No. 4 also informed the applicant about the said death. It was only after receipt of the report of the Detective Agency on 11th August, 2002 as mentioned that the applicant Bank to know for the first lime about the death of the defendant No. 4."

134. Again, it has been contended with rigour by the applicant-Bank that the prayer for abatement of the commercial cause Suit No. 245 of 1986 later becoming TA No. 8 of 1997 on May 16, 1987 was impliedly present in the prayor for substitution. Similarly, the order for substitution of the legal heirs of the said defendant necessarily implied the setting aside of abatement, if any. The applicant-Bank has also stated that for the reason of the self-protection of itself it has further made this application for setting aside the abatement, if any. Logically admitted, when the legal representative or the legal heir of any dead person intended to be substituted has been brought on record in place and instead of the latter by an order of substitution of a Court, the order for setting aside abatement shall be impliedly there. There is no doubt an inalienable and irreplaceable relationship between the substitution of the deceased defendant or plaintiff and the order of setting aside abatement. Such logical soundness, which this Tribunal is finding in the contention as expressly taken out in the paragraph No. 14 of its application. Despite this, the Tribunal is finding itself bound, in view of the provisions contained in Article 141 of the Constitution of India, by the observation made by Justice Desai at paragraph No. 5 p. 679 in the Madan Naik case (supra). At paragraph No. 5 of the said judgment there have been prescribed the legal requirements for substitution. Those legal requirements are as follows : It is obligatory for a party seeking substitution of the heirs and the legal representatives of the other side; secondly, such substitution shall be allowed to be made provided that the right to sue survives; thirdly, such substitution has to be sought within the time prescribed by Law of Limitation; fourthly, failure to fulfil either of the conditions needing to be conjointly read and applied shall result in the abatement of a suit, proceeding or an appeal. Though His Lordship was pleased to fomulate the law that no specific order for abatement of a proceeding under one or the other provisions of Order XXII is envisaged, the abatement shall take place on its own force by passage of time. Side-by-side, His Lordship has also been pleased to prescribe a provision being mandatory for setting aside an abatement, which has already taken place.

135. Let the view expressed by His Lordship be quoted here: "It may be mentioned that no specific order for abatement of a proceeding under one or the other provision of Order 22 is envisaged, the abatement takes place on its own force by passage of lime. "The version of the highest Court is being set forth below: ".......In fact, a specific order is necessary under Order 22, Rule 9, C.P.C. for setting aside the abatement." The order passed by the learned Recovery Officer for substitution has since been done in non-compliance with the above version of the Highest Court the said order is becoming non est.

136. However, for the reason of making successful the said application, the learned Advocate appearing for the applicant-Bank has referred to the case of Birbal and Ors. v. Harlal Sadasukh, (supra). In that judgment there were basically involved two contentions. A decree or an order, if passed, against a dead person in a case or an appeal or a proceeding where it has abated shall not be always a nullity for all purposes. Apart from the above, the ignorance as to the death of a party was whether to be a good ground for not moving the Court to bring the legal representative on record. Justice Khosla, while dealing with the above two issues on law held the following one:

"The effect of abatement is not that a decree against a dead person is a nullity for all purposes but that the decree can be set aside and the legal representatives given an opportunity of representing their case before the Court. In this case the first point to consider is whether there was sufficient ground for not making an application within the statutory period of 150 days. The plaintiffs contention was that he did not know of Surajs death. He has stated this on oath and this statement was accepted by the learned District Judge.

Now ignorance of the death of a party is a very good ground for not moving the Court to bring his legal representatives on record, for a person cannot think of making an application in this behalf unless he knows that the party is dead. The defendants did not inform the Court and Surajs Counsel continued to appear on his behalf. The plaintiff stated on oath that he did not know of Surajs death until much later. In the circumstances it seems to me that the plaintiff has shown sufficient cause for not making the application in time, and the learned District Judge Was justified in extending limitation in this respect."

137. In support of the specific contention that the order of abatement was impliedly present in the order of substitution passed by the learned Recovery Officer, the learned Advocate has been found in citing before this Tribunal one Orissa case of early sixties. Similar issue or legal contention arose before the Honble High Court at Orissa in the year 1960 in the case of Babaji Pradhan v. Mst. Gurubara Pradhan, (supra). In that case S. Barman, J., dealt with the issue in the following manner. An application to bring the legal representatives of the deceased defendant on record after the lime prescribed therefore by law should ordinarily be treated an application to set aside the abatement of the case which has taken place. According to His Lordship, no formal order on setting aside an abatement shall be an obstacle to allow an application for substitution. Perhaps, His Lordship framed the view after bearing in mind the following one unless the abatement of a proceeding has been set aside, the legal heir or the surviving legal representative of the deceased defendant would not possibly be brought on record. But on the other hand the case of Madan Naik was decided almost twenty years after the above authority of the High Court after holding a view contrary to that of S. Barman. J, in the case of Babaji Pradhan v. Mst. Gurbara Pradhan. It may be legitimately presumed that the case of Babaji Pradhan v. Mst. Gurbara Pradhan had been impliedly overruled in the Madan Naiks case. Hence, it may be implied the above authority cited by the learned Advocate for the applicant Bank has been reduced to per incurium.

138. The Tribunal has been assigned by the application preferred by Dr. Gautam Basu and the application for setting aside an abatement by the applicant-Bank to decide principally the two points namely since the commercial cause Suit No. 245 or 1986 via TA No. 8 of 1987 had already abated on May 16, 1987 and the judgment and decree passed on July 10, 1999 and against a dead person like late Bhuban Mohan Bose has been a nullity on which no formal order is required to be made The impugned substitution of the miscellaneous applicant on August 23, 2002 is also becoming void and nullity; and the other issue is the legality of the application for setting aside abatement of the above suit and the substitution of the miscellaneous applicant though made after a long interval of almost sixteen years by the applicant-Bank.

139. Each of such issues conflicting with each other needs to be determined in a meritorious and judicious manner. The common feature of both the applications is that each of such application is time-barred one. While dealing with the condonation of delay this Tribunal reminds itself that it is passing through the hey days of the liberal approach towards delay which has perhaps commenced its journey since the case of Ram Charan, if one minutely reads into the detailed judgment given in that case. As mentioned earlier, the Section 5 application preferred by the Divisional Engineer for the Union of India was steadily rejected because it failed to contain the sufficiency of the reasons shown therein. In that case Justice Dayal has also laid stress much on the concept of the adoption of sufficient causes. In the year 1964, a liberal construction or interpretation to be adopted while dealing with a Section 5 application was at a nascent stage but the cases like State of West Bengal v. Administrator, Howrah Municipality, Sital Prasad Saxena v. Union of India, N. Balakrishnan v. M. Krishnamurthy, Rama Ravalu Gavade v. Sataba Gavadu Gavade and Ram Nath Sao v. Gobardhan Sao; and lastly the two authorities quoted with approval in the case of State of West Bengal v. Nripendra Nath Banerjee have sufficiently and necessarily guided a traditional Court or a Tribunal or a Judicial body to deal with the Section 5 application, when shall be made before it and to advance justice to the adversely affected applicant. In each of those authorities it may be seen that delay has not been permitted to destroy a good meritorious case or to foreclose to put forth the legitimate cause. According to each of the authorities there is no presumption that delay in approaching the Court has always been deliberate. Added to that, the following one may be said: since while passing through the era of mass society being characterized absolutely by the incessant business or pre-occupation of a suitor or an actor irrespective of its character the inordinate delay is becoming inevitable. The modern days complexity should not be permitted to stand in a way for consideration of a time-barred application.

140. In other words, if the application for condonation of delay is rejected at the initial stage there is every possible chance of a meritorious matter or a legitimate case being nipped in the bud. Apart from the above, the Section 5 rejecting judicial body shall also be found that it has markedly refrained itself from entering into a case or a matter, irrespective of that it has been saddled by the statutory provision with a duty to adjudicate.

141. Accordingly, both the applications made under Section 5 of the Limitation Act read along with Section 24 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 should be allowed.

142. The other facet of the miscellaneous application is that since the deceased defendant No. 4 was not duly served with the writ of summons when the commercial cause suit No. 245 of 1986 was pending before the Honble High Court, he was prevented from appearing either in person or through an authorised agent before the Court and consequently not taking part in the proceeding before such Court. Thereafter, the said deceased defendant failed to be served with the summons issued by the learned transferring Tribunal in connection with the Transfer Application No. 8 of 1997. The said defendant was prevented from entering his appearance, filing the written statement and also taking part in the hearing of the said application renumbering the commercial cause suit No. 245 of 1986.

143. While advocating the cause or the said miscellaneous applicant, the learned Senior Counsel has sincerely afforded to draw the attention of this Tribunal to the different provisions of Order V of the First Schedule to the Code of Civil Procedure, 1908, amongst the various objections raised expressly on behalf of the said applicant the specific allegation is that the serving officer or the peon has not been examined, and such fact constituted one of the factors responsible for his lapses. After vehemently challenging the substituted service under Rule 20(1-A) of the said order speaking for an order for service upon the impleaded defendant by way of an advertisement in a daily newspaper the learned Senior Advocate raised the question, pertinent indeed, what were the factors that dictated the conscience of the Tribunal to order for the substituted service.

144. So far as the allegation of non-examination of a serving peon by the Honble Court is concerned, this Tribunal is necessarily referring to the Calcutta amendment. By such amendment being caused by the Honble High Court at Kolkata under Section 122 of the said Code, Rule 19-A has been inserted into the body of the said Code after Rule 19 of the Order No. V. Rule 19-A lays down the following: "A declaration made and subscribed by a serving officer shall be received as evidence of the facts as to the service or admitted service of the summons". Rule 19 speaks expressly of the examination of the serving officer: But such examination of a serving officer falls within the discretion of a Court. In view of Calcutta and Assam amendments the examination of a serving peon is not necessary in those States. Over and above the certificate holder applicant-Bank has submitted before this Tribunal on February 18, 2003 a report of service from the office of the Deputy Sheriff being a highly dignified officer of the said Honble Court which factually speaks in favour of the applicant-Bank as well as also lends support to the satisfaction of the learned Transferring Tribunal under Rule 20 of Order V of the said Code. Factually speaking the defendant Nos. 1, 2 and 3 made their appearance through one learned Advocate, whereas the deceased defendant No. 4 failed to do so. In such situation the learned transferring Tribunal was, I think, satisfied and justified in arriving at a finding that there was every reason to believe that the said defendant was keeping out of the way for the purpose of avoiding service. Accordingly, the order for the substituted service was made in the background of the above facts that existed at the time of making and passing such order for the substituted service. Hence, the order for substituted service under Rule 20 Sub-rule (1-a) of Order V may be sustained.

145. None can dispute that each of the defendants was a non-participating defendant because each such did not satisfy the two basic minimum requirements being highly essential for being categorized as the participating defendants which are mentioned below:

(a) Appearance either in person or through an Advocate or an agent legally empowered; and

(b) the filing of the written statement under Order VIII of the said Code. On the point of the participating and non-participating defendant this Tribunal has given a detailed discussion in the preceding paragraphs. After keeping in mind those two salient features of the non-participating defendant a Tribunal may grant an exemption in favour of an actor or a suitor not to bring on record by way of substitution the legal heir of the deceased defendant. It is being further mentioned that in Sub-rule (4) of Rule 4 of Order XXII the non obstante clause has been specifically used for giving the overriding effect on the death of a non-participating defendant and also saving any order, if passed, against such defendant from the scourge of being assailed of as being void and without force. Furthermore, the aforesaid view is being framed by this Tribunal, after it has taken into its consideration the views framed by the Honble High Court at Kolkata in Sankari Prasad Singh Deo v. Kanai Lal Roy (1), 52 CWN 599 (per Chakravartti, J.); and Nani Gopal Mukherjee v. Panchanan Mukherjee, 55 CWN 304 at p. 395-396 (per Dasgupta. J,) which were, after prescribing the preventive measures against abatement, pronounced in accordance with the Kolkata amendments prevalent that time.

146. As because the applicant-Bank has made an application for substitution as well as for setting aside the abatement of the suit in a composite manner, this Tribunal is travelling in an orbit legally prescribed so far.

147. True to say all the defences, which have been expressly taken hereinabove are absolutely owned by the deceased defendant for the purpose of setting aside an ex parte decree or order against him. On that score Order IX Rule 13 read along with Section 22, Sub-section (2), Clause (g) of the present Act is the same and specific. Thus the miscellaneous applicant has substantially helped the applicant-Bank by way of taking expressly all the defences which were appropriate to the character of and available to late Bhuban Mohan Bose, for the purpose of setting aside the ex parte judgment or decree passed against him, so far as its application for substitution is concerned. In such situation the miscellaneous applicant has brought himself on his own motion on the record in place of the deceased defendant No. 4. Such observation is being made on the strengh of Sub-rule (2) of Rule 4 of Order XXII which reads as follows: "Any person so made a party may make any defence appropriate to his character as legal representative of deceased defendant". In the event of the provisions contained in that sub-rule be read and construed rightly, it shall further appear that defences for setting aside an ex parte judgment or order or decree may be taken rightly and lawfully by a substituted person after he has been brought on record. In other words, Sub-rule (2) speaks eloquently of the right of inheritance of the defences of the deceased defendant by the substituted defendant, which shall be in addition to his other own defences, in respect of setting aside an order or judgment or decree pronounced ex parte.

148. While assailing the non-service upon the impleaded person at the proper address of which the applicant-Bank had the knowledge, the learned Senior Counsel has been found in relying much on the case of J. Bashyam Achari v. G. Parthasarathi, (supra). In that matter an appeal arose out of an ex parte decree under the legal provisions as laid down in Sub-section (2) of Section 9(5 of the said Code laying down "an appeal may lie from an original decree passed ex parte". The said appeal was in fact preferred by the aggrieved third defendant who was lawfully said to have been survived by the said respondent. The said appellant defendant was in fact a Government servant employed in the Government Medical Stores in Byculla, Mumbai against which the first notice was issued by the respondent. In spite of knowing the fact that the said appellant was transferred from Byculla to Raichur in a Government Medical Store, the respondent prayed for the second service upon the appellant-defendant at his earlier postal address the order was, accordingly, made by the learned Court. The said order was factually obtained by way of suppression of the above relevant material fact. The net result was the return of non-accepted service of such judicial process. Lastly, an ex parte decree was obtained by the respondent. The circumstances involved in the above case are markedly different from the facts in the present matter under consideration. Accordingly, the authority of J. Bashyam Achari is not rendering any assistance to the miscellaneous applicant. Furthermore, if the applicant-Bank caused to have served the writ of summons simultaneously at the two postal addresses of the deceased defendant No. 4. it would have been certainly a nicer one. But to fit the judicial .version in J. Bashyam Acharis case best in the present one, the allegation of suppression of facts by the Bank would become inevitable; but that situation has been conspicuously absent from the present one.

149. The allegation of the applicant-Bank with regard to the nature of the application preferred by the said applicant on November 18, 2002, which has been though not levelled with any legal provision is also not being accepted because of the following reasons that by no state of imagination it cannot be called an application for review under Clause (g) of Subsection (2) of the of 1993 read along with Section 114 and Order XLVII of the Code of Civil Procedure, 1908. Better it should be designated as an application meant for challenging the alleged substitution of himself by the learned Recovery Officer during the recovery proceeding, regarding which Rule 12 of Order XXII is specific, so far as Rules 3, 4 and 8 are concerned, which I am not here discussing. Again the application preferred on November 18, 2002, be necessarily called an application for challenging the order dated July 10, 1999, certificate issued thereon and lastly the order of attachment of the properties being respectively situated at 6/C, Sevak Baidya Street, Kolkata-700029 and 110, Kumar Para Lane, Kasba, Kolkata-700019. The application may be treated as an appeal under Section 30 of the present Act so far as the orders of the Recovery Officer are concerned. Accordingly, the contention of the applicant-Bank is being negatived. The similar orders shall also apply with equal force to the other miscellaneous applications with the directions respectively made in connection therewith, So far as the self-acquired property being situated at 110, Kumar Para Lane, Kasba, Kolkata, is concerned, the applicant Bank has been found not in whispering anything else positive regarding the said property; nor the applicant Bank has been able to prove or establish before this Tribunal that such property is the outcome of the benefit enjoyed of the estate left intestate of the deceased defendant instead of being a self-required property being the fruit of toil, labour, efforts but not the gift of the deceased defendant nor it has been succeeded by the said applicant from the said dead person. So far as the ground floor of the building being situated at 6/C, Sevak Baidya Street is concerned the said floor is being enjoyed as the chamber of the miscellaneous applicant which shall appear as a matter of fact evident from the report of a disinterested impartial person.

It is being ordered that the delay committed in preferring the applications by both parties before me is being condoned in the light of the reasons stated in the preceding paragraphs.

For the set of the foregoing reasons, the application made by the applicant-Bank is being allowed with a direction that a commercial suit No. 245 of 1986 that Had abated on May 16, 1987 for want of the substitution within the prescribed limelimit of ninety days from the date of death i.e. 18th February, 1987 of the deceased defendant is being ordered to be set aside in accordance with law. The application for substitution of the miscellaneous applicant is also being ordered to be allowed.

Hence, it is being ordered that the order of attachment made and passed by the learned Recovery Officer in connection with 110-Kumarpara Lane, being the self-acquired property and also an order of injunction injuncting the applicant and the other applicants like Dr. Jhumur Gupta, Smt. Sharmistha Bose for parting with in any manner of the said property are hereby being lifted; it is being further ordered that the said applicants shall appear before the learned Recovery Officer along with the original documents for establishing the claim that the said property is a self-acquired property and not an inherited one.

The learned Recovery Officer shall dispose of the application, if made, by those applicants in a judicious manner and after being uninfluenced by the observation made hereinabove within a period of thirty days from date of receipt of this order.

The record maintained in connection with MA/6 of 2002 and others are being sent back to the learned Recovery Officer for the purpose of the conduct of the recovery proceedings bearing No. TRP-26 of 2002.