JUDGMENT 1. THIS Rule was obtained by some of the defendants in a suit for partition on a Revisional application and the only point raised is as to whether the suit having abated as against one of the defendants on his death, the court could have added the legal representatives of the said defendant under Order 1 Rule 10 (2) read with section 151 of the Code of Civil Procedure. 2. THE material facts are not in dispute. The plaintiff/opposite party instituted Title Suit no. 71 of 1971 of the 2nd Court of the learned Subordinate, Judge, Alipore, claiming partition in respect of the suit property in his share. The defendant No. 4 in that suit Monmohan Mukherji died on March 20, 1972. No steps were taken to bring on record the legal representatives of the said deceased defendant within the time prescribed. Much too later an application was filed by the plaintiff under Order 22 Rule 9 of the Code of Civil Procedure for substituting the legal representatives of the said deceased defendant No. 4 on setting aside abatement. That application was registered as Miscellaneous Case No. 2 of 1973. Pending the said miscellaneous case, the plaintiff filed an application under Order 1 Rule 10 (2) read with section 151 of the Code of Civil Procedure (out of which the present Rule arises) praying for adding the legal representatives as parties to the suit. Such an application was filed on October 11, 1974. The plaintiff did not press his application under Order 22 Rule and of the Code when it came up for hearing and allowed the miscellaneous case to be dismissed for non-prosecution but he pressed the aforesaid application for addition of parties and the said application was allowed by the learned Subordinate Judge by an order dated December 13, 1975. Feeling aggrieved by the said order some of the defendants have preferred the present Revisional application. Mr. Mitra appearing on behalf of the petitioners has strongly contended that once the application under Order 22 Rule 9 of the Code had been dismissed the suit abated as a whole and the learned Subordinate Judge had lost all his jurisdiction to add parties to such a suit on any application under order 1 Rule 10 (2) or section 151 of the Code. Secondly, it has been contended by Mr. Secondly, it has been contended by Mr. Mitra that once abatement takes its effect it could be set aside only in the "manner prescribed by the Code, namely, Order 22 Rule 9 thereof. Once an application under the said provision fails the court no longer possesses any power either under Order 1 Rule 10 (2) or section 151 of the Code to add the legal representatives of the deceased defendant and thus circumvent the effect of the abatement, Mr. Mitra had relied upon a number of decisions in support of his contention. 3. MR. Sen appearing on behalf of the plaintiff/opposite party has contested the points thus raised by Mr. Mitra. According to Mr. Sen, the fact that the present suit is a suit for partition which has yet not been decreed is a distinctive feature. In such a suit according to Mr. Sen the right to claim partition subsists until there is a partition and when that right is not lost as a result of abatement but continues to remain as against his legal representatives, it is well within the power of the court under Order 1 Rule 10 (2) to bring on record the legal representatives and thus- shorten the litigation instead of relegating them to a fresh suit for the same relief. 4. WE have carefully considered the rival contentions put forward before us. In our view the point raised is certainly of some importance. So far as the first point raised by Mr. Mitra is concerned, it must be said that the same is based upon a misapprehension. It is now well settled that on the provision of Order 22 Rule 4 (3) of the Code where on the death of a defendant no application is made to cause the legal representative of the deceased defendant to be substituted within the time prescribed there for by law the suit abates as against the deceased defendant and not against all. As against the rest depending on the facts, the suit may very well be proceeded with, provided if on facts it is found that the suit is no longer maintainable in the absence of the legal representatives of the deceased defendant then the suit has to be dismissed as against them. As against the rest depending on the facts, the suit may very well be proceeded with, provided if on facts it is found that the suit is no longer maintainable in the absence of the legal representatives of the deceased defendant then the suit has to be dismissed as against them. This principle has been well settled by the Supreme Court in the case of State of Punjab -v- Nathuram A.I.R. 1962 S.C, 89 and all the decisions in this regard have been reviewed by this court in an earlier decision affirming the aforesaid position in the case of Surendra Nath Sarkar -v- Mahatab Mondal, 82 C.W.N. 661. Such being the position, we are unable to sustain the contention of Mr. Mitra that in the present case the suit as a whole had abated and the learned Subordinate judge had lost all his jurisdiction to entertain or allow an application under Order 1 Rule 10 (2) read with section 151 of the Code. Next we proceed to consider the second point raised by Mr. Mitra. It cannot be disputed that in the present case, the plaintiff's application for setting aside abatement having been dismissed, the suit abated as against defendant No. 4. Mr. Mitra relying strongly on the decision of the Supreme Court in the case of Union of India -v- Ram Charan, A.I.R. 1964 S.C. 215, has contended that in view of such abatement, the court can not any further add the legal representatives of the deceased defendant No. 4 as parties and thus circumvent the order recording abatement on the effect thereof. No doubt in the above case, the Supreme Court observed in wide terms that the court is not to invoke its inherent powers under section 151 for the purpose of impleading the legal representatives of a deceased respondent against whom the appeal had abated and the application for setting aside such abatement has been dismissed. But those observations are to be read on the context of facts. There the deceased sole respondent had obtained a money decree against Union of India, the appellant before the lower appellate court. Respondent having died pending such appeal and there being abatement, an application was filed for setting aside abatement. That application failed and the appeal was dismissed as having abated. There the deceased sole respondent had obtained a money decree against Union of India, the appellant before the lower appellate court. Respondent having died pending such appeal and there being abatement, an application was filed for setting aside abatement. That application failed and the appeal was dismissed as having abated. Before the Supreme Court it was sought to be argued on behalf of Union of India, that since the court had inherent power to add the legal representatives, the appeal should not have been dismissed in that manner. In overruling such a contention, the Supreme Court made the observations now relied on by Mr. Mitra. In our view, the Supreme Court in the above case was merely reaffirming its earlier decision in the case of Rameswar Prosad -v- Shyam Beharilal, A.I.R. 1963 S.C. 1901, where it was laid down that the discretionary power cannot be exercised to nullify the effect of abatement of an appeal so far as the deceased party is concerned. The decision of the Supreme Court relied on by Mr. Mitra cannot be read as an authority for such a bar as would admit of no exception. These decisions must be read to mean, that Court's power to add the legal representatives must not be so exercised as to nullify the effect of abatement. 5. BUT as pointed out by this court in the case of Surendra Nath Sarkar -v-Mahatab mondal, 1978 (1) C. L. J. 306, there may be exceptional cases. It is well recognised that the court's powers under Order 1 Rule 10 are wide and ought to be exercised by a court for doing complete justice between the parties. Reference may be made to the decision of the Supreme Court in the case of R. S. Maddanappa -v- Chandramma am. R. 1965 S.C. 1812, approving the decision of the Privy Council in Bhupendra -v- Rajeswar, 58 I. A. 228. Courts have exercised such powers to bring on record legal representatives even after abatement in cases where the suits on their very nature do not wholly abate as against the legal representatives like administration and partition suits. 6. IN a suit for partition where no decree has yet been passed, as in the present case, when one of the co-sharer defendants dies and there, is abatement on his death, it cannot be said that a fresh suit is totally barred under Or. 6. IN a suit for partition where no decree has yet been passed, as in the present case, when one of the co-sharer defendants dies and there, is abatement on his death, it cannot be said that a fresh suit is totally barred under Or. 22 Rule 9 (1) of the Code. The right to bring a suit for partition, unlike ordinary other suits is a continuing right incidental to the ownership of joint property and such right subsists as long as the property is not partitioned and continues to be joint. (Madan Mohan V-Baikuntha Nath, 10 C.W.N. 839). Though technically the pending suit based on its original cause of action may stand barred, that is a matter of technicality. We are firmly of the view that considering the matter from the aspect of its substance there is very little difference between allowing the plaintiff in such a case to institute a fresh suit for partition impleading the legal representatives of the deceased defendant and removing the defect as to parties in the existing suit for partition which arose as a result of the abatement by adding the legal representatives as parties defendants under Order 1 Rule 10 (2) of the Code. The said provision vests wide powers and discretion in the court arid though we may agree with Mr. Mitra that such powers should not normally be exercised to circumvent the effect of abatement, yet when in a suit of the present nature exercise of such power would not really constitute in substance any such circumvention, it cannot be said such power could not have been exercised. In the case of Mohamadali v- Safiabai A.I.R. 1940 P.C. 215, Privy Council upheld the above position though that was a suit for administration. It was therein observed ;- "there Lordships are of the opinion that it is open to the Judge in his discretion under Order 1 Rule 10 to add as a party to the suit, the representative of a person against whom the suit has abated for the purpose of giving effect to the rights of the parties. The contention that plaintiff's suit had abated as a whole is fundamentally mistaken. " 7. The contention that plaintiff's suit had abated as a whole is fundamentally mistaken. " 7. IN the case of Lakshmichand -v- Kachubai I. L. R. 35 Bombay 393, the Bombay High Court took the same view when in a partition suit even after the abatement as against one of the deceased parties, the legal representatives were allowed to be added as parties. It was so allowed because the court held that in a suit for partition all the parties should be before the court and their being nothing in the Code of Civil Procedure limiting or affecting the inherent power of the court to make such orders as are necessary for the ends of justice. Though this decision was later distinguished in the case of Dadu Raghu Patilvtukaram, A.I.R. 1959 Bombay 221 on the ground that there was already a preliminary decree and as such there was no abatement, we do not think that in view of the principles laid down therein the decision can be so distinguished Those principles again were approved by Sir Asutosh Mukherji in the case of Pulin beharivmahendra Chandra Ghosal 34 C.L.J 405. Reference may as well be made to a decision of a learned single judge of this court in the case of Provat Chandra vrabindranath A.I.R. 1961 Cal. 291 though we entertain some doubt about the correctness of the extended view expressed therein to the effect that the court may exercise its inherent powers in setting aside abatement. 8. THE particular issue now being considered by us came up for consideration before the Allahabad High Court in the bench decision in the case of Khalil Ahmed v addl District Judge, Gorakhpur A.I.R. 1974. All 422, and it was therein held that Order 1 Rule 10 (2) of the Code gives power to court to implead the legal representative of a party against whom there had been an abatement when such impleadment is necessary to enable the court to effectually adjudicate upon the question involved in the suit. That was a suit for redemption of a mortgage where one of the mortgagees being dead an application for substituting the legal representative was dismissed on the ground of limitation. In the decisions of the Supreme Court relied on by Mr. That was a suit for redemption of a mortgage where one of the mortgagees being dead an application for substituting the legal representative was dismissed on the ground of limitation. In the decisions of the Supreme Court relied on by Mr. Mitra it should be remembered that in all those cases the abatement was at the appellate stage as a result whereof the decree in favour of the deceased-respondent became final and the appeal could no longer be maintained as against the others for the reason that the same may lead to inconsistent decrees. No such consequence, however, follows on the abatement as in the present case as we have indicated hereinbefore. Here the addition is made on the footing that such legal representatives though necessary parties to a suit for partition were as if left out, and as such, should be added subject of course to section 21 of the Limitation Act. In our view on the same principle on which the court adds a necessary party in a suit for partition who had been left out earlier erroneously, the addition as prayed for in the present case should be allowed, Therefore, there was no illegality or irregularity, far less any lack pf jurisdiction on the part of the learned subordinate Judge in allowing the application of the plaintiff under Order 1 Rule 10 (2) read with section 151 of the Code of Civil Procedure. In this view, we overrule both the points raised by Mr. Mitra and discharge this Rule. There will be no order as to costs. Let the records be sent down forthwith. Rule discharged no costs.