JUDGMENT 1. This application is directed against an order of the Subordinate Judge, 24-Parganas, allowing an application for amendment of the plaint and for substitution. It appears that one Promodini Basu obtained a decree for maintenance in a suit brought against her husband (Title Suit No. 99 of 1938) in the Court of the Second Subordinate Judge at Alipore. On the 3rd March, 1939, one Bistupada Basu was appointed a Receiver to the estate of her husband Tarini Charan in execution of the decree,--his function being to manage the estate and to pay the Plaintiff Promodini arrears of maintenance decreed and the monthly allowance for the maintenance as allowed by the Court. On the 15th January, 1940, Biswasnath Basu, the only son of Tarini Charan was appointed Receiver in place of Bistupada. On the 30th November, 1942, the present applicant to this Court purchased Touzi No. 3244 of the 24-Parganahs Collectorate which formed part of the estate in the hands of the Receiver at a certificate sale and on the 1st June, 1943, Biswanath as Receiver to the estate of Tarini Charan brought a suit, Title Suit No. 58 of 1943 to set aside the above certificate sale. On the 11th February, 1947, Promodini died as a result of which administration of the receiver came to an and. Thereupon on the 6th March, 1947, Biswanath filed an application for being substituted in place of Tarini Charan as his sole heir. It should be mentioned that there is no direct information or evidence that Tarini Charan was dead on this date, but as he had not been heard of for more than seven years, Biswanath proceeded on the basis of the presumption of law that he is dead. 2. On the 8th May, 1947, Biswanath filed another petition for amendment of the plaint by describing himself as making the application in his personal capacity. 3. The present applicant objected to this application apparently mainly on the ground that the application for substitution, not being within 90 days from any known date of death of Tarini Charan, was barred by limitation. It was his case that if the application to substitution failed, the application for amendment would automatically fail. 4. The learned Subordinate Judge, as stated above, allowed the application. It was his case that if the application to substitution failed, the application for amendment would automatically fail. 4. The learned Subordinate Judge, as stated above, allowed the application. He was of the view that the period of 90 days, prescribed in Art. 176, Schedule I of the Limitation Act has no application here as the date of death is not only not known but can not possibly be ascertained. He held also that this was not a case of devolution of interest and so the provisions of Or. 22, r. 10 of the CPC could not apply. In these circumstances, he held that this was a proper case where in exercise of the inherent jurisdiction under sec. 151 of the Code, the Court should and could allow the applications for substitution and for amendment so that Biswanath, who was admittedly the sole heir of Tarini Charan Basu, could prosecute the suit which he had brought in his capacity as Receiver to the estate. 5. It is contended by Mr. Lala, who has appeared before us in support of this application, that as there can be no presumption as regards the date of death under sec. 108 of the Evidence Act, the application for substitution must be held to be barred by limitation, and should have, therefore, been dismissed. His further contention is that if this application for substitution was liable to dismissal, the Court could not deprive him of the benefits of that dismissal by purporting to act under sec. 151 of the Code of Civil Procedure. 6. There can be no doubt that while under sec. 108 of the Evidence Act there can be a presumption of death of a person who has not been heard of for more than seven years, there can be no presumption as regards the date on time of death. For the purpose of this application, therefore, we must proceed on the basis that Tarini Charan has been proved to be dead (as Mr. Lala admits that the presumption under sec. 108 of the Evidence Act has not been rebutted by his client), but the date of his death is not known. For the purpose of this application, therefore, we must proceed on the basis that Tarini Charan has been proved to be dead (as Mr. Lala admits that the presumption under sec. 108 of the Evidence Act has not been rebutted by his client), but the date of his death is not known. If we assume that Tarini Charan was the Plaintiff in this suit for setting aside the certificate of sale, it would follow that the application for substitution of his heir is required by Article 176 to be brought within 90 days of the date of his death,--if Article 176 applies to a case like this where the date of death cannot be ascertained. The learned Subordinate Judge took the view that this provision that the application has to be brought within 90 days from the date of death can have no application to a case where the date of death cannot possibly be known. We are inclined to accept this view as correct, for if the date of death cannot possibly be ascertained, there would be no way of computing the period of limitation. 7. Assuming that Tarini was the Plaintiff, what is the consequence of the application not having been affirmatively shown to have been brought within 90 days of the date of death? Sec. 3 of the Limitation Act provides that an application made after the period of limitation prescribed by the First Schedule shall be dismissed. The consequence of Or. 22, r. 3 (2) of the CPC is that where within the time limited by law no application is made for substitution, the suit shall abate so far as the deceased Plaintiff is concerned. It seems to us, however, that before this consequence of either dismissal, as provided for in sec. 3 of the Limitation Act, or abatement, as provided for in Or. 22, r. 3 (2) of the Code, can have operation, it is necessary for the Court to be affirmatively convinced that the application has not been brought within the period of 90 days from the date of death. Where, as in the present case, there is no possibility of ascertaining the date of death, I do not see how the Court can ever be affirmatively convinced of this fact. Where, as in the present case, there is no possibility of ascertaining the date of death, I do not see how the Court can ever be affirmatively convinced of this fact. Our conclusion, therefore, is that in a case where substitution is sought to be made on the basis of a presumption of death under sec. 108 of the Indian Evidence Act, there is no scope for operation of either the dismissal, as contemplated in sec. 3 of the Limitation Act, or of abatement, as provided for in sub-r. (2), r. 3, Or. 22 of the Code. 8. In our opinion, therefore, the contention of the learned Advocate that the application was barred by limitation and was liable to be dismissed must fail. 9. We have been asked to proceed on the assumption that Tarini was the Plaintiff. In fact, however, Tarini never figured as Plaintiff. The suit was not brought by him and as far as can be ascertained he was not known or heard of at the time the suit was brought in 1943. It has been argued by Mr. Lala that when Biswanath brought the suit as Receiver to the estate of Tarini, Tarini must in law be held to be the Plaintiff, and it was never a case of the Plaintiff Tarini being represented by the Receiver. With this contention we are unable to agree. In one sense, the receiver can be said to represent the owner of the estate, but when the Receiver brings a suit, or is sued, that is done with the permission of the Court and as a result of specific provision in law. It is wrong to consider him as representing the owner of the estate in the way the guardian of a minor represents him in a suit brought on behalf of the minor. Our view that the Receiver, as a party to a suit, has a distinct capacity, apart and separate from the owners of the estate, is fortified by a decision of this Court in the case of Md. Kader Ali Fakir v. Gobindabandhu Dutta 49 C.W.N. 808 (1944). Our view that the Receiver, as a party to a suit, has a distinct capacity, apart and separate from the owners of the estate, is fortified by a decision of this Court in the case of Md. Kader Ali Fakir v. Gobindabandhu Dutta 49 C.W.N. 808 (1944). In that case it was held that If the property in the bands of the Receiver is intended to be affected by the result of such a suit, the Receiver has got to be made a party after obtaining leave from the court and this is to be by way of addition to and not in substitution for the parties who are responsible 10. Our view, therefore, is that Tarini was never the Plaintiff in the suit and so the question of substitution in place of Tarini does not arise. The application for substitution of Biswanath as an heir of Tarini was in this view misconceived. 11. The only proper course for the Court in circumstances like this was, in our opinion, to permit Biswanath to continue the suit in his personal capacity as the legal owner of the estate. This can and should be done in exercise of the Court's inherent jurisdiction under sec. 151 of the Code of Civil Procedure. This is in effect what the learned Subordinate Judge has done and we find no reason to interfere with his order. The application is accordingly rejected and the Rule is discharged with costs.