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1. This is an anneal from an Order made by my learned brother G. K. Mitter. J., in suit No. 1252 of 1948. The, suit was originally instituted, in the name of Surajmull Hanumandas, claiming the price of: goods sold and delivered to the defendant. By an order dated 16-1-1950, the plaint was amended by substituting the name of Hanumandas Kanoria the then karta of the joint family business carried on under the name and style of Surajmull Harmmandas, as plaintiff. On or about 1-11-1951, the joint family, of which Hanumandas was the karta, was disrupted and thereupon Hanumandas and one Subhkaran Kanoria and one Biswanath Kanoria became the kartas of the three branches of the family and as such became entitled to the business of Surajmull Hanumandas and the assets thereof including the claim against the defendant firm. On or about 24-7-1952, Hanumandas Kanoria died leaving Kedarnath as Karta of his branch of the family. On 27-7-1958, an application was made on behalf of Kedarnath Kanoria, Subhkaran Kanoria and Riswanath Kanoria for an amendment of the plaint. The application, though in form an application for amendment of the plaint, was in substance one for substitution of the petitioners as plaintiffs and for consequential amendment of the plaint and has been treated as such. G.K. Mitter, J., referred to the decision in Ganeshmal v. Nagraj Surana , in which Banerjee, J., held that when during the pendency of a suit, the karta, who filed the suit, dies, the next karta can apply to be brought on the record, there being no question of abatement of the suit, G. K. Mitter, J., then pointed out that in the instant case the application had been made! more than three years after the death of the karta Hanumandas and also more than three years after the disruption of the family. Ha held that there clearly was some devolution or creation of interest within the meaning of Order XXII, Rule 10, of the Code of Civil Procedure and that the application before him fell under Order XXII, Rule 10 or Order I, Rule 10, of the Code of Civil Procedure. He then observed that the only question before him was whether the application was hit by Article 181 of the Limitation Act. He thereupon dismissed the application. Although, he docs not say so clearly, it appears that he must have dismissed the application on the ground that the application was tarred by limitation.

25. It is true that the death of the assignor plaintiff simpliciter does not take away the right of the assignee to apply under Order XXII, Rule 10 of the Code of Civil Procedure. By Order XXII, Rule 1 the death of the plaintiff of itself does not cause the suit to abate. Before the suit has abated the assignee may apply for and obtain leave to continue the suit. He may also, if he chooses, apply for substitution of the legal representative of the deceased plaintiff. In a proper case the order for leave to continue the suit may be dated nune protune as of the date when the application was made. If necessary, the application for leave to continue the suit may he treated as being in substance a composite application for substitution of the legal representatives of the deceased plaintiff and there-after of the applicant. On obtaining the necessary leave the assignee becomes the new plaintiff and the suit cannot thereafter abate on account of the death of the original plaintiff.

32. With very great respect, I am unable to agree with this decision. I observe that the point that where the whole suit abates there is no suit which can be continued, was not at all considered by the Court. It is also wrong to say that the assigned is not affected by the rules relating to abatement or that those rules affect only the legal representative of the deceased party or his assignees or Receivers in Insolvency. In my opinion, Order XXII, Rule 9 of the Code of Civil Procedure affects assignees of the deceased plaintiff as well as his legal representatives. If the cause of action is identical, the fresh suit is barred, no matter whether it is brought by the assignee or by the legal representative of the deceased plaintiff. Termination of the suit by abatement also affects the right of the assignee, to apply under Order XXII, Rule 10 of the Code of Civil Procedure. The suit having abated, there is no suit which can be continued and as such the assignee cannot apply under Order XXII, Rule 10 after the suit has abated. The application under Order XXII. Rule 10 cannot be made after the suit has abated not because it is barred by limitation, but because there is no suit which can be continued.

39. Mr. Bhabra drew our attention to the marginal note in Order XXII Rule 10 of the Code of Civil Procedure to the effect that the procedure provided in this rule is procedure in case of assignment before final order in suit. He has tried to convince us that there must be a final order before it can be said that the suit has ceased to exist for the purpose of leave being given. I can find no substance in this contention. The marginal note can be and often is of great assistance for the interpretation of the actual words used in the section. But as was laid down by the Supreme Court in the case of Nalinakhya Bysack v. Shyam Sunder Haldar. when dealing with the marginal note of Section 18 of the West Bengal Premises Rent Control Act, the indication of the marginal note must yield to the clear words in the section itself. In the present case, Rule 10 of Order XXII is, in my opinion, abundantly clear that a suit in order to be continued must be a live suit and as under the present Code as distinct from the previous Code no actual order of abatement need be passed by the Court and the suit abates even in the absence of the order by operation of law, the result is inevitable that even though no final order has actually been made in the suit, no order to continue the suit can be made, once the suit has abated.