JUDGMENT Khundkar, J. - Although this Rule is not opposed, the facts which have given rise to it and the law relating to the point taken by the learned Advocate who appears on behalf of the Petitioners have to he stated. A suit for rent, being Small Cause Court Suit No. 176 of 1942, was instituted in the Court of Small Cause Court Judge at Kalna, at the instance of the Opposite Parties against three brothers--Kunja Lal De, Nani Lal De and Tirtha Lal De. The summons in that suit was returned unserved, along with the report by the process-server, which stated that the Defendant No. 1, Kunja Lal De, had died about two years prior to the date on which the was instituted, and that the other two Defendants were absent from home. It is stated on behalf of the present Petitioners, who are the sons of Kunja Lal De, that the death of their father actually took place some time in October, 1939. On the 18th of June, 1942, an application was presented by the Plaintiffs for substitution of the heirs of the Defendant No. 1. Kunja Lal De, and in that application it was alleged that Kunja Lal De had died on the 30th of April, 1942. This allegation was false, Thereafter, on the 31st of July, 1942, the application for substitution having been granted and the present Petitioners having been brought on the record as Defendants in the suit, an application was presented on behalf of the Plaintiffs expunge from the record the Defendants Nos.2 and 3, Nani Lal De and Tirtha Lal De respectively, and that application was granted. Subsequently the Court pronounced an ex parte decree against the Petitioners who are five in number. The Petitioners made an application under the provisions of Or. 9 r. 13 of the Code of Civil Procedure, to set aside that decree. But that application failed. They then obtained a Rule from this Court to show cause why the ex parte decree should not be set aside, and that Rule was made absolute on the 11th of April, 1945. 9 r. 13 of the Code of Civil Procedure, to set aside that decree. But that application failed. They then obtained a Rule from this Court to show cause why the ex parte decree should not be set aside, and that Rule was made absolute on the 11th of April, 1945. When the suit came on for trial again one of the defences taken by the Petitioners was that, as the suit had been instituted against a man who was actually dead, it was not maintainable against his heirs, and that the Petitioners were wrongly substituted in the place of their father as Defendants in the suit. This objection was negatived by the learned Judge of the Court of Small Causes who has decreed the suit. It is against that order that the present Rule has been obtained. The Rule calls upon the Opposite Parties to show cause why the judgment and decree of the learned Court below should not be set aside, and the only point argued in support of the Rule is that the Court had no jurisdiction to make a decree against the heirs of a person who was not alive at the time when the suit was instituted. The matter is of some importance, and I think it is amply covered by authority. In Mohun Chunder Koondoo v. Azeem Gazee Chowkeedar 12 W. R. 45 (1869), it was held that where the defendant in the suit is found to have died before the filing of the plaint, the Court has no jurisdiction to decide the suit against him. This decision has been subsequently applied in a number of cases. In Veerappa Chetty v. Tindal Ponnen I. L. R. 31 Mad. 86 (1907) the question which arose for decision was whether when a plaint is presented for the purpose of instituting a suit against a defendant, and it afterwards turns out that the defendant had died before the presentation of the plaint, the Court has jurisdiction to substitute the representatives of the deceased as defendants, and allow the suit to proceed as against them. Wallis and Miller, JJ., said : It does not appear to have ever been suggested that the issue of a writ against a dead man could be anything but a nullity, and we see no reason for regarding the presentation of a plaint, which under our system corresponds to the issue of the writ, as anything more . . . . . . . . there is nothing in the Code to authorise the institution of a suit against a dead man as distinct from a suit against his legal representatives, but the death of the Defendant puts an end to the suit within a prescribed period unless steps are taken within that period for bringing in the legal representatives. In Mahatab Bahadur v. Amulya Charan Mitra 24 I. C. 112 (1914) which was a decision of a Division Bench of this Court, it was held that the provisions as to the substitution of the heirs of a deceased defendant as parties to the suit in his place apply only to cases where the original defendant was alive at the date of the institution of the suit. Another decision of this Court was the judgment of Fletcher, J., in Krista Das Law v. Kumar Khirada Kanta Roy 51 I. C. 160 (1919). In that case the plaintiffs had brought suits for rent, but it was discovered that the defendant was dead at the time when the suits were instituted. The plaintiffs endeavoured to go on with the cases, applying for the substitution of the heirs of the defendant who was dead. It was held, following Mohun Chunder Koondoo v. Azeem Gazee Chowkeedar 12 W. R. 45 (1869) and Veerappa Chetty v. Tindal Ponnen I. L. R. 31 Mad. 86 (1907) that this could not be permitted. 2. The statements contained in the petition upon which this Rule was granted stand uncontradicted. So far as the facts are concerned, the Court must, therefore, take it that those statements are true. It is stated in paragraph 5 of the petition that in the matter of substitution of the Petitioners in the place of their father, the Opposite Parties made an untrue statement when they said that the death of the Petitioners' father took place on the 30th of April, 1942. It is stated in paragraph 5 of the petition that in the matter of substitution of the Petitioners in the place of their father, the Opposite Parties made an untrue statement when they said that the death of the Petitioners' father took place on the 30th of April, 1942. In paragraph 3 of the petition it has been stated that the report of the process-server, who was unable to effect service of summons in the suit, showed that the deceased Defendant had died two years before the suit was instituted. In view of these statements, the Court must hold that the application of the 18th June, 1942, for substitution of the heirs of the deceased Defendant was not bond fide. That circumstance, in my judgment, is a further reason for holding that the present Rule must be made absolute. The judgment and decree of the learned Judge of the Court of Small Causes, elated the 26th of May, 1945, is set aside. In the order of the 11th of April, 1945, Passed by Mr. Justice Henderson, by which the previous Rule was made absolute and the ex parte decree set aside, it was directed that the Munsif would hear and determine the suit in accordance with law, and the costs of the Rule would be the costs in the suit, the hearing-fee of the Rule being assessed at one gold mohur. The Opposite Parties having tailed in this litigation as the result of the order now made by me, the Petitioners would be entitled to the said assessed costs of the previous Rule, as well as the costs of the hearing of the suit in the Court below. As regards the costs of the hearing of the present Rule, as there is no appearance on behalf of the Opposite Parties, I make no order.