Judgement Appeal from a judgment and decree of the Court of the Judicial Commissioner of Oudh (December 7, 1911) affirming in review a judgment and order of that Court (February 20, 1912) reversing an order of the Deputy Commissioner of Bahraich (September 11, 1911). Raja Muneshar Bakhsh Singh, father of the appellant, instituted a suit against the respondent for recovery of arrears of rent under a lease and filed his plaint on May 3, 1911, in the Court of the Deputy Commissioner of Bahraich. The respondent filed his written statement on May 31, 1911. On June 21, 1911, Raja Muneshar Bakhsh Singh died. The suit was fixed for hearing on July 4, 1911, and on that day, the plaintiff not appearing, the suit was dismissed. On August 3, 1911, the appellant applied that- the order dismissing the suit might be set aside and that he might be substituted for his father as plaintiff. Law Rep. 40 Ind. App. 151 ( 1912- 1913) Raja Debi Bakhsh Singh V. Habib Shah 64 On August 3, 1911, the agent of the appellant left this application with the general superintendent of the Court of the Deputy Commissioner, stating that he was waiting in Court from 2 p.m. to 4.30 p.m. to present the application, but that he was unable to do so, as the Deputy Commissioner had not taken applications on that date. The Deputy Commissioner on August 4, 1911, ordered " he was in my Court and might have filed it then. It may be accepted." The application purported to be made under the Code of Civil Procedure, 1908, Order xxii., r. 3, and Order ix., r. 9. At the hearing of the application on September 11, 1911, the respondent contended that no report of succession had been made under the provisions of the Land Revenue Act (III. of 1901, U. P.), s. 34 (5.), also that the application could not be taken as being made before August 4, 1911, and that it was therefore time-barred by the Limitation Act, 1908, Sched. I., art. 163. The appellant contended that the period of limitation was six months under Sched. I., art. 176, of that Act. The Deputy Commissioner granted the application; he stated that the report of the succession required by the Land Revenue Act had been made, and he held that the application had been accepted on August 3, 1911, under his order. 163. The appellant contended that the period of limitation was six months under Sched. I., art. 176, of that Act. The Deputy Commissioner granted the application; he stated that the report of the succession required by the Land Revenue Act had been made, and he held that the application had been accepted on August 3, 1911, under his order. He added " I cannot allow any technicality to obscure the fact that the case was not heard only because of the calamity which prevented it being put up." On the respondents application to the Court of the Judicial Commissioner this order was reversed. That Court considered that Act III. of 1901, s. 34 (5.), had not been complied with, no report being in the record; also that the application under Order ix., r. 9, had to be made within thirty days of the dismissal, and that it was not effectively made on August 3, 1911, and was therefore out of time. The appellant applied to the Court of the Judicial Commissioner to review this decision on the ground that the dismissal of the suit under Order ix., r. 8, was ultra vires, and that the inherent jurisdiction of the Deputy Commissioner to set aside his dismissal of the case was preserved by the Code of Civil Procedure, 1908, s. 151, and that no effect had been given to Order xxii., r. 3. On February 20, 1912, the Court of the Judicial Commissioner delivered judgment by which they rejected these contentions, affirmed their decision of December 5, 1911, and dismissed the application. De Gruyther, K.C., and Kyffin, for the appellant. Where a sole plaintiff dies before trial, Order ix., r. 8, does not apply. The suit was dismissed in ignorance of the fact that the plaintiff was dead, and the Deputy Commissioner had inherent jurisdiction to set aside the order dismissing it. That inherent jurisdiction is preserved by the Code of Civil Procedure, 1908, s. 151 By Order xxii., r. 1, it is provided that the death of the plaintiff shall not cause the suit to abate if the right to sue survives, and the appellant, as the legal representative, properly applied under r. 3 of that order to be made a party. Whether the application was effectively made on August 3 or 4, it was in time, for the Limitation Act, 1908, Sched. I., art. Whether the application was effectively made on August 3 or 4, it was in time, for the Limitation Act, 1908, Sched. I., art. 176, makes six months the limitation period for this application. It is true that art. 163 of that schedule makes thirty days the period within which an application under Order ix., r. 9, has to be made, but no such application was necessary, the suit having been dismissed after the death of the plaintiff. The Deputy Commissioner found as a fact that the order of succession required by Act III. of 1901, U. P., s. 34 (5.) had been made; it was not in the record because this fact was not challenged. The respondent did not appear. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. The appellants father, Raja Muneshar Bakhsh Singh, instituted a suit against the respondent for payment of sums amounting to Rs.15,908. The plaint was filed on May 3, 1911, in the Court of the Deputy Commissioner of Bahraich. The respondent filed his written Law Rep. 40 Ind. App. 151 ( 1912- 1913) Raja Debi Bakhsh Singh V. Habib Shah 65 statement on May 31, 1911. On July 4 the following occurred before the Deputy Commissioner—" On the case being called to-day the plaintiff was not present. I therefore dismiss the claim. Costs upon plaintiff." The fact, unknown to the Deputy Commissioner, was that the plaintiff was dead. He had died about a fortnight before, namely, on June 21. It is plain to their Lordships that, upon this being pointed out, it was the duty of the Deputy Commissioner to rectify the situation. This duty Mr. Clarke, the Deputy Commissioner, seems fully to have recognized. It requires no words of their Lordships to shew the inapplicability of rules or orders dealing with the case of the non-appearance of a suitor to the situation which arises when the suitor is dead. The principle of forfeiture of rights in consequence of a default in procedure by a party to a cause is a principle of punishment in respect of such default, but the punishment of the dead, or the ranking of death under the category of default, does not seem to be very stateable. The principle of forfeiture of rights in consequence of a default in procedure by a party to a cause is a principle of punishment in respect of such default, but the punishment of the dead, or the ranking of death under the category of default, does not seem to be very stateable. The deceased plaintiffs son took the proper steps to have his name substituted in place of his deceased father under Order xxii., r. 3, of the Civil Procedure Code. He did so on August 8, which was well within the period of six months limitation under art. 176 of the First Schedule of the Indian Limitation Act of 1908. Some question arose as to the application being time-barred, but the latter was very properly accepted by Mr. Clarke. The appellant had also taken the proper steps to have a report of his succession made under s. 84 of the Land Revenue Act, 1901. On September 11, 1911, the Deputy Commissioner pronounced the following order—" The case was dismissed as no one appeared on the previous hearing. This was due to the death of the Raja of Mallanpur. The other side claim that the rehearing is barred under s. 34 of the Rent Act, but that section clearly requires a report of the succession, which has already been made. It is argued that the application is time-barred, but it was filed and accepted under my order within time. But I cannot allow any technicality to obscure the fact that the case was only not heard because of the calamity which prevented the applicant putting up this case. Under these circumstances I accept this application, and fix 27th October for hearing of issues, if necessary, and proof." This order by the Deputy Commissioner is so manifestly sensible and correct that their Lordships are of opinion that it ought to be reverted to, and the case proceeded with accordingly. On October 5, 1911, however, the Court of the Judicial Commissioner of Oudh reversed the Deputy Commissioners order, and on February 20, 1912, on review, that judgment was affirmed. In their Lordships opinion these judgments cannot stand, being vitiated by applying to a dead man orders and rules applicable to a defaulter. On October 5, 1911, however, the Court of the Judicial Commissioner of Oudh reversed the Deputy Commissioners order, and on February 20, 1912, on review, that judgment was affirmed. In their Lordships opinion these judgments cannot stand, being vitiated by applying to a dead man orders and rules applicable to a defaulter. By the Code of Civil Procedure, s. 151, it is provided that " nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court." In their Lordships opinion such abuse has occurred by the course adopted in the Court of the Judicial Commissioner. Quite apart from s. 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made. But s. 151 could never be invoked in a case clearer than the present, and their Lordships are at a loss to understand why, apart from points of procedure and otherwise, it was not taken advantage of. Their Lordships have humbly advised His Majesty that the appeal be allowed, the order appealed from set aside and the order of the Deputy Commissioner of September 11, 1911, restored, and that the appellant be found entitled to the costs of the proceedings since August 3, 1911, in India, and to the costs of this appeal. The suit will be remitted to India to be disposed of on the merits.