JUDGMENT Stephen, J. - In this case the Petitioner prays that the death of a Defendant may be recorded and that the suit may he revived by placing the names of certain Defendants in the place of the deceased Defendant. 2. The suit is for the construction of a will, which, not to notice the earlier stages of the litigation, led to a decree of the Privy Council, dated 6th February 1892 by which it was declared that the Petitioner was entitled to a moiety of certain property and this Court was directed to order an account to be taken of the testator's property at the time of his death and of the accumulations of the income of his estate during the life of one of his widows. 3. The changes that have taken place in the parties to the suit are as follows. The widow being one of the parties to the suit died during the pendency of the appeal to the Privy Council. One of the present Defendants was then brought in as sole heir to the testator and four brothers were made Defendants as heirs to the widow, some of whose moveable property was stated to have been retained by them after her death. Of these brothers, one Brojendro Nath Mitter died more than three years age, leaving his father, Bhabodayini-Charan, his heir. The son was never added as a Defendant and died some time in 1902. It is now sought to have the death of the deceased brother recorded and to have the remaining brothers brought in as his heirs. Under these circumstances I think it is plain that the petitioning Defendant's right to have the substitution prayed for made must be treated as though he were asking for the substitution to the son instead of substitution to the father as the son's heir. If the right to have the substitution could have been barred, if the son were alive, it is difficult to see how it can be revived by his death. Treating the case from this point of view, the first question raised is, does either Section 368 or Section 372 of the CPC apply. It is plain that Section 368 cannot apply, since the decree in this suit is the decree of the Privy Council and the eon did not therefore "die before decree" in the terms of that section. Treating the case from this point of view, the first question raised is, does either Section 368 or Section 372 of the CPC apply. It is plain that Section 368 cannot apply, since the decree in this suit is the decree of the Privy Council and the eon did not therefore "die before decree" in the terms of that section. The case is therefore one of the "other cases" mentioned in Section 372 and the final order on the taking of the accounts not having been made, there is a "pending suit" according to the judgment of Pontifex J. in Gocool Chander Gossamee v. The Administrator-General of Bengal ILR (1880) Cal. 726. 4. The next point is whether this application is barred by Article 178 of the Limitation Act, 1877, that is, whether three years have elapsed since the right to apply accrued. As I have already said, I consider that the present application might have been made at the death of the son, which was admittedly more than three years ago and the question argued before me is, did the right to apply accrue at that time within the meaning of the Act? Reliance has been placed on the decision of Wilson J. in Kedarnath Dutt v. Harra Chand Dutt ILR (1882) Cal. 420, followed by Sale J. in Ram Nath Bhuttacharjee v. Uma Charan Sircar (1899) 3 C.W.N. 756, in which it was decided that a right to make a similar application, being one in a pending suit, the right to apply was a right whisk accrued from day to day and therefore it was not barred by lapse of time. 5. In both these cases the application was made after a partition had been decreed and before it had been carried out and it is suggested that for that reason they cannot be held to apply to the present case. This, no doubt, creates a difference between those cases and the present one; since a right to partition, if it accrues at all, accrues from day to day and a right to account does not. 6. It is not, however, on this characteristic of the case before him that the judgment of Wilson J. is founded, but on the fast that a suit was pending--a characteristic common both to that case and this. 6. It is not, however, on this characteristic of the case before him that the judgment of Wilson J. is founded, but on the fast that a suit was pending--a characteristic common both to that case and this. It is further urged that if that principle is applied to this case, there can be no limitation to an application u/s 372. I am not concerned to say that this is the proper construction to be put on Mr. Justice Wilson's language, but if it is, I do not think the argument is conclusive. I consider therefore that the present case is governed by the two cases I have quoted and that the Petitioner's right to make this application accrues from day to day and is therefore not barred by limitation. The petition is therefore granted in terms of the prayer. 7. Attorney for the Petitioner : Jnanendra Nath Dutt.