JUDGMENT V. K. Mehrotra, A. C. J.—Way. back, in the year 1967, a suit was filed by the present applicants for possession of some land by redemption of a mortgage, on payment of Rs. 300 to the mortgagee The mortgagees are the defendants While the suit was pending, two of the defendants died. Ti e plaintiffs made an application to bring on record the legal representatives of the deceased mortgagees Most of the proposed heirs, sought to be impleaded in place of the deceased defendants, were served Some, however, could not be served due, according to the plaintiffs, to the fact that they were living at different places. The plaintiffs were directed to file process fee, correct addresses and registered A. D. for service on the unserved legal representatives, by an order dated March 13, 1978, for April 2i, 1978 The plaintiffs failed to do so The learned Senior Sub-Judge, who was trying the suit, imposed costs of Rs. 11 upon the plaintiffs and directed them to comply with the order of March 13, 1978. for June 20, 1978 The plaintiffs, however, failed to comply with the order, or, even to pay the amount of costs for June 20, 1978. The suit, therefore, was dismissed by the trial Judge under Order IX, Rule 2, C P. C. 2. The plaintiffs then filed civil miscellaneous application No. 22 of 1978 on June 24, 1978 for restoration of the suit The application was, however, dismissed by the learned Senior Sub-Judge on November 17, 1983. Under some mistaken advice, the plaintiffs challenged the order by filing Civil Miscellaneous Appeal No. 1 of 1984. The learned District Judge disposed of the appeal by holding that it was not maintainable. This was on March 18, 1985. Thereafter, the plaintiffs came to this court for relief by way of this revision petition. 3. There is no dispute between the parties that the two defendants, who had died, had left behind a number of legal representatives, some of whom had actually been served, and it was only in respect of a few of them that steps were not taken by the plaintiffs for service by complying with the direction in that regard made by the trial Court. The relief sought in the suit was, as noticed earlier, of possession over certain property, which bad been mortgaged by the plaintiffs or their predecessors-in-interest The plaintiffs were, according to the averments in the plaint, prepared to redeem the entire mortgage by payment of the mortgage security. Order XXXIV Rule 1 requires : “1. Parties to suits for foreclosure, sale and redemption —Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. Explanation — *” 4. There is no dispute that when the suit was instituted, all the persons having interest in the mortgage security, were impleaded as defendants. 5. Order IX, C. P. C., dealing with the appearance of parties and consequence of non-appearance, provides, in Rule 2, that : "2. Dismissal of suit where summons not served in consequence of plaintiffs failure to pay costs.—Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service or to present copies of the plaint or concise statements, as required by Rule 9 of Order VII, the Court may make an order that the suit be dismissed : Provided that no such order shall be made if, notwithstanding such failure, the defendant attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer." Rule 4 then says that : "Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in Rule 2, or for his non appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit." 6. Under Rule 8 of Order IX, where the defendant appears and the plaintiff does not appear, the court is to make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof in which eventuality the court may pass a decree in respect of that part of the claim which was admitted and dismiss the suit relating to the remainder Rule 9 then says that in case of dismissal of a suit, whole or in part, under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set aside the dismissal, which the court may do, on the plaintiffs satisfying that there was sufficient cause for the non-appearance of the plaintiff when the suit was called on for hearing 7. The consequence of a failure on the part of the plaintiff, inter alia, to provide the court-fee or postal charges or present copies of the plaint etc, can be dismissal of the suit. The proviso to Rule 2 of Order IX, however, shows that if, notwithstanding such failure, the defendant attends in person, or through an agent if he is allowed to do so on the date fixed for him to appear and answer, no order of dismissal of the suit shall be made. Rule 4 contemplates that where a suit is dismissed under Rule 2, the plaintiff has an option to bring a fresh suit, subject to the law of limitation, or apply for an order to set aside the dismissal of the suit, if he satisfies the court that there was sufficient cause for the failure, referred to in Rule 2, having occurred on his part The court, upon its satisfaction to that effect, is to make the order, setting aside the dismissal. 8. The scheme enshrined in Rules 2 and 4 of Order IX, C. P C. clearly shows that dismissal of a suit, under Rule 2, is not contemplated as precluding the plaintiff from agitating his claim afresh. The scheme is to ensure that the plaintiff brings the defendant before the Court. 8. The scheme enshrined in Rules 2 and 4 of Order IX, C. P C. clearly shows that dismissal of a suit, under Rule 2, is not contemplated as precluding the plaintiff from agitating his claim afresh. The scheme is to ensure that the plaintiff brings the defendant before the Court. That such was the scheme in contemplation of the legislature, is further strengthened by the fact that a dismissal under Rule 8 of Order IX, C. P, C bars a fresh suit by the plaintiff in respect of the same cause of action. The framers of the Code cannot be attributed an intention that the dismissal of the suit, as a whole, was in their contemplation when they provided for its dismissal, consequent upon the failure on the part of the plaintiff to take the steps contemplated by Order IX Rule 2. The matter is not res-integra. It has been considered by various High Courts from time to time. 9. A Division Bench of the Patna High Court rules, in Ramanand Singh and others v. Chandrama Singh and others, AIR 1921 Pat 422, that the default of the plaintiff to pay process fees on the date fixed for the payment in respect of one of the defendants, can be no justification for dismissal of the suit as against the other defendants. This decision was followed by the Patna High Court in a subsequent decision in M/s. Gammon India Ltd and others v. The Bihar State Electricity Board, AIR 1976 Pat 305. Similar view was taken, though without referring to the decision in Ramanand Singh and others (supra), by another Division Bench of the Patna High Court, in Mt. Waleyatunnissa Begum v. Mt Chalakhi and others, AIR 1931 Pat 164, 10. The Punjab and Haryana High Court has also followed the decision of the Patna High Court in Ramanand Singh (supra), in the case of Sohan Singh v. Jawala Singh Natha Singh and another, AIR 1973 P & H 52. So has the Oudh Court in Mt. Ganesh Kuer v. Sheo Raj Singh and others, AIR 1937 Oudh 502. 11. The principle, aforesaid, seems to have been recognised by the Supreme Court, though in a slightly different context, in its decision in Nagubai Ammal and others v. B. Shama Rao and others, AIR 1956 SC 593. So has the Oudh Court in Mt. Ganesh Kuer v. Sheo Raj Singh and others, AIR 1937 Oudh 502. 11. The principle, aforesaid, seems to have been recognised by the Supreme Court, though in a slightly different context, in its decision in Nagubai Ammal and others v. B. Shama Rao and others, AIR 1956 SC 593. In that case the equity of redemption had vested in the official receiver, upon the declaration of one of the mortgagors, Keshavananda as an insolvent. The official receiver had not been joined in the execution proceedings, in which the property was purchased by one Devamma in an auction sale. The Supreme Court observed (at page 603) that such a sale, in execution of a decree passed in a defectively constituted mortgage suit, does not affect the rights of redemption of persons interested in the equity of redemption, who had not been impleaded as parties to the action as the should have been under Order XXXIV, Rule 1, C. P. C, and that they sale was as valid and effective as against parties to the action. The Supreme Court held that: “....even assuming that the equity of redemption in the suit properties vested in the Official Receiver on the adjudication of Keshvananda, his non-joinder in the execution proceedings did not render the purchase by Devamma a nullity, and that under the sale she acquired a good and impeachable title, subject to any right which the Official Receiver might elect to exercise, and it is not open to attack by the transferee pendente life9 under the deed dated 30-1-1920 and his representatives,........” 12. The legal position in a case, like the present, where some only of the heirs and legal representatives of a deceased defendant remained unserved, has been put beyond any pale of doubt by the Supreme Court in its subsequent decision in N. K. Mohd. Sulaiman Sahib v. N. C. Mohd. Ismail Saheb and others, AIR 1996 SC 791. The decision is by a Constitution Bench In it, while instituting a suit under Order XXXIV Rule 1, C. P. C, the plaintiff, after making due inquiry, impleaded such of the heirs of a deceased mortgagor, who were found to be in possession of the property and obtained a decree of his mortgage against them. The decision is by a Constitution Bench In it, while instituting a suit under Order XXXIV Rule 1, C. P. C, the plaintiff, after making due inquiry, impleaded such of the heirs of a deceased mortgagor, who were found to be in possession of the property and obtained a decree of his mortgage against them. In execution of that decree, he purchased the property himself with the permission of the court- It was discovered, however, that some of the heirs of the deceased mortgagor had not been impleaded in the suit, after the death of the mortgagor. The Supreme Court upheld the same, but made certain observations, which are germane to the issue. It held that in the absence of any collusion or fraud, or other ground which could taint the decree, a decree passed against the persons impleaded as heirs would bind the estate even though other persons interested in the estate were not brought on the record In this respect there is no difference in a case where some legal representatives of the deceased are left out, after bonafide efforts to implead all of them in the suit by the plaintiff, at the time of the institution of the suit or thereafter during the pendency thereof. The principle of representation of the estate by the heirs who were joined as parties applied in the case and the decree would be binding even on these persons who claimed to be the left out heirs of the deceased mortgagor. 13. The Supreme Court noticed the decision of the Madras High Court in Shunmugham Chettiar v, Govindaswami Chettiar, AIR 1961 Mad 428, with approval, in that regard, in para 16 of the judgment. 14. A Division Bench of the Calcutta High Court, relying, inter alia, upon the decision of the Supreme Court in N. K. Mohd. Sulaiman Sahib (supra), culled out the principles of law, which are to be applied in the matter of abatement of a suit, in Haridas Roy and another v. Calcutta Commercial Bank Ltd.% AIR 1972 Cal 329. 14. A Division Bench of the Calcutta High Court, relying, inter alia, upon the decision of the Supreme Court in N. K. Mohd. Sulaiman Sahib (supra), culled out the principles of law, which are to be applied in the matter of abatement of a suit, in Haridas Roy and another v. Calcutta Commercial Bank Ltd.% AIR 1972 Cal 329. The principles mentioned in para 22 are these : "(a) Where the plaintiff has impleaded under a genuine belief, all the heirs of the deceased known to him and obtains a decree, the same would be binding upon the other heirs interest in the estate, provided there was a diligent and bona fide enquiry made by the plaintiff to find out all the heirs of the deceased and provided further, there be no prejudice to the absent heirs on the passing of such a decree. It is also to be seen whether there could have been any sufficient and special defence by the left out heirs, which were not or could not be tried in the suit. (b) The decree so passed, would be binding on the estate even if any heir of the deceased is left out through oversight or on account of some doubts as to two are the heirs, and if there is no fraud, collusion or other like grounds between the parties to the suit. (c) If the trial of the action is real and fair and there is no motive to leave out the other heirs. (d) If a decree, preliminary or final, has already been passed. (e) The considerations which should generally weigh with the Court in deciding such questions including the full representation of the estate are the fact of possession of the entire estate by the Administrator or by the Receiver or by those heirs who have only been impleaded. (f) The exercise of the discretion by the courts in not impleading the left out heirs must be judicial and cautious and the Courts must have jurisdiction to exercise such discretion " Some of these provide guidance in the present case. 15. The effect of the discussion, aforesaid, is that, in the facts of this case, it could not be said that the suit would fail as a whole, as was held by the Senior Sub-Judge. 15. The effect of the discussion, aforesaid, is that, in the facts of this case, it could not be said that the suit would fail as a whole, as was held by the Senior Sub-Judge. Upon the failure of the plaintiffs to take steps contemplated by Order IX Rule 2, C. P. C. 16. The question, however, is whether this Court should intervene in the matter now, when, admittedly, the suit was initially instituted on December 7, 1967 and has, for various fortuitous circumstances, not proceeded beyond, what one may describe as, the mere threshold. There are a large number of defendants or their legal representatives. Likewise, there are several plaintiffs Many of them may not see an end of this litigation during their life time. It would be inequitable now, after a lapse of over 23 years, to let the parties litigate in respect of the property which was mortgaged in the year 1923, 1, therefore, decline to intervene in the matter and dismiss the revision petition, leaving the parties to bear their own costs. Revision petition dismissed.