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Case Number

Miscellaneous Case No. 255 of 1915

Attorney(S)

Munshi Shim Prasad Sinha for Babu Sailanath Mukerji, for the applicants.
Pandit Uma Skankar Bajpai, for the opposite party.

Judges

Lindsay
Sulaiman
Mukerji, JJ.

Acts

section 366 of Act No. XIV of 1882. Section 371
Code of Civil Procedure, Act No. XIV of 1882,
section 371 of the Code of Civil Procedure
Limitation Act of 1877, article 171
sub-rule (3) of order XXII, rule
sub-rule (1)
17, rule 9)

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

The matter was referred to a Full Bench to decide whether the decision in Gujrati v. Sital Misir was correctly decided and to determine the proper interpretation of certain expressions in Order XXII of the Code of Civil Procedure. Order XXII concerns the effect on suits (and, by rule 11, appeals) of events such as the death, marriage and insolvency of parties and provides for abatement and a procedure for revivor under rule 9.

A central procedural question was whether a suit or appeal abates automatically upon the occurrence of the events specified in Order XXII or whether the court must pass a formal order declaring abatement before abatement takes effect. The Full Bench (Lindsay, Sulaiman and Mukerji, JJ.) considered prior judicial decisions and statutory language bearing on this question.

The Full Bench gave its opinion that abatement is automatic and that the earlier decision reported in I.L.R. 44 All. 459 was incorrect and ought to be overruled. The case was then sent back to the referring Judges for disposal. On return, Sulaiman and Mukerji, JJ. applied the Full Bench's ruling to an application for substitution following the death of a party (Baneshwar), found the substitution application time-barred and declared that the Letters Patent Appeal had abated; they set aside the order allowing the appeal and made no order as to costs.

Legal Issues Presented

Whether the decision in Gujrati v. Sital Misir was rightly decided (this question was referred to the Full Bench).
Whether, under Order XXII of the Code of Civil Procedure, a suit or appeal abates automatically upon the happening of events specified in the Order (death, marriage, insolvency), or whether the court must pass a formal order declaring abatement.
Whether an application to set aside an abatement under the Limitation provisions must be made within sixty days from the actual abatement or from the passing of a court order declaring the abatement.
On the remittal, whether the applicants acted with sufficient diligence in making an application for substitution within the statutory period (ninety days), given the dates of death and of the applicants' knowledge of the death.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gujrati v. Sital Misir	The Full Bench was asked to decide whether this decision was rightly decided; no detailed principle from that case is set out in the opinion excerpt.	The correctness of this decision was one of the matters referred to the Full Bench for opinion.
Lachmi Narain v. Muhammad Yusuf	Expressed the view (attributed to Mr. Justice Walsh) supportive of the proposition that abatement does not require a formal court order.	The Bench (Lindsay, J.) cited this case as taking the view that abatement is automatic and treated it as supportive of the Full Bench's conclusion.
I.L.R. 44 All. 459	Held (by two learned Judges) that a formal order declaring abatement is necessary before an application under Order XXII, rule 9(2) can be entertained.	The Full Bench concluded that this decision was not correct and ought to be overruled; it rejected the necessity of a formal court order to bring about abatement.
Secretary of State for India v. Jawahir Lal	Cited in I.L.R. 44 All. 459 as authority; contains language that might suggest a formal order is necessary, although other passages indicate abatement occurs when no application under sub-rule (1) is made.	The Full Bench analysed the judgment and found its language ambiguous on whether a formal order was required; it held that the decision does not lay down that a formal order is necessary and did not treat it as decisive against automatic abatement.
I.L.R. 42 All. 540	Described in the opinion as laying down the "correct law" regarding the interpretation of Order XXII (i.e., that abatement is automatic).	The Full Bench endorsed the principle reported in this decision as stating the correct interpretation of Order XXII.

Court's Reasoning and Analysis

The Court's analysis proceeded in the following steps (as set out in the opinion):

Interpretation of Order XXII: Lindsay, J. examined the language of Order XXII and concluded that the text supports the view that abatement results automatically from the occurrence of the events enumerated in the Order (death, marriage, insolvency), and that no court order is necessary to produce the legal condition of abatement.
Distinction between "abatement" and "dismissal": The Court observed that dismissal under Order XXII is addressed separately (rule 8(2)) and requires an application by the defendant in the insolvency case; such dismissal cannot be automatic because it depends on an application and a court order. The existence of non-automatic dismissal did not imply that abatement also required a court order.
Function of court declarations: The Court noted that while courts sometimes "declare" that a suit or appeal has abated, such declarations are merely records of an existing legal fact (the abatement) rather than the cause of abatement.
Analysis of prior authorities: The Court considered the judgment reported in I.L.R. 44 All. 459 (which had held that a formal order was necessary) and the decision in Secretary of State for India v. Jawahir Lal (which had ambiguous language). Lindsay, J. found the reasoning in I.L.R. 44 All. 459 unsound and the Secretary of State decision not to lay down that a formal order was required.
Statutory and historical context: The opinion examined prior statutory provisions under the Code of Civil Procedure, Act No. XIV of 1882 (sections 366 and 371) and the Limitation Act of 1877 (article 171), which used language tied to an "order for abatement" and thus began the period of limitation from the date of that order. The Court contrasted that with the language of Act No. IX of 1908 (the Limitation Act as enacted in that year), in which article 171 referred to applications "to set aside an abatement" and commenced the period of limitation from the date of the abatement itself rather than from the date of an order. The change in statutory language was treated as supporting the conclusion that abatement is a fact occurring independently of a formal court order.
Conclusion on the principal question: On the basis of the textual reading of Order XXII, the statutory history, and consideration of prior case law, the Full Bench concluded that abatement is automatic and that the decision in I.L.R. 44 All. 459 was incorrect and should be overruled. The court identified I.L.R. 42 All. 540 as setting out the correct law.
Additional judicial observations: Sulaiman, J. noted the English practice (Order 17, rule 9) where the solicitor certifies that a cause has abated and the officer records it; Mukerji, J. referred to sub-rule (3) of Order XXII, rule 9 as an additional reason supporting automatic abatement.
Remittal and subsequent application: After the Full Bench's opinion, the matter was returned to the referring Judges who, applying the Full Bench's determination that an application to set aside abatement must be made within sixty days from the actual abatement, considered an application for substitution. They found that Baneshwar died on 28 February 1924, the applicants said they learned of the death on 5 January 1925, and that the statutory period for substitution (ninety days) had been exceeded even if computed from the date of knowledge. The referring Judges held there was no diligence, declared the Letters Patent Appeal abated, set aside the order allowing the appeal and made no order as to costs.

Holding and Implications

Core Ruling: The Full Bench held that abatement of a suit or appeal under Order XXII is an automatic legal consequence of the events specified in that Order and does not require a formal court order to take effect.

Additional holdings and immediate consequences, as stated in the opinion:

The decision reported in I.L.R. 44 All. 459 (which had held that a formal order was necessary for abatement) was declared to be incorrect and ought to be overruled.
The opinion endorsed the view reported in I.L.R. 42 All. 540 as stating the correct interpretation of Order XXII.
The Full Bench determined that an application to set aside an abatement must be made within sixty days from the actual abatement (and not from the passing of any order declaring the abatement).
On remittal, the referring Judges applied the statutory ninety-day period for substitution, found the substitution application to be time-barred and not made with sufficient diligence, declared the Letters Patent Appeal abated, set aside the order allowing the appeal and made no order as to costs.

Practical effect on the parties in this matter: the Letters Patent Appeal was declared abated and the previously allowance of the appeal was set aside; the substitution application failed for delay. The opinion, as reported, overruled a prior contrary authority and stated the controlling legal position on the interpretation of Order XXII as between the cited authorities.

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Churya v. Baneshwar

Lindsay, J.:— This case has been referred to a Full Bench in order to obtain a pronouncement as to whether the case of Gujrati v. Sital Misir, was rightly decided. This question is connected with the question of the proper interpretation of certain expressions to be found in order XXII of the Code of Civil Procedure.

That order deals with what is to happen to suits in cases of the death, marriage and insolvency of parties, and in general terms the order declares that on the happening of certain events the suit abates. This procedure is also made applicable to appeals by virtue of rule 11 of order XXII, so that, under the order in question it is possible for either a suit or an appeal to abate.

When a suit or appeal abates under the order, rule 9 lays down a procedure by way of revivor, and if that procedure is followed the suit or appeal which has abated and, so to speak, become dead is revived.

The question upon which there has been a considerable difference of judicial opinion in this Court is whether, before a suit abates, it is necessary for the court to pass what has been called an order for abatement, that is to say, the question is whether a suit abates automatically or whether in order to bring about abatement it is necessary that the court should pass an order to that effect.

It seems to me on a study of the language of order XXII that it is impossible to contend that there is any need for a court to pass what is called an order for abatement; for, in my opinion, abatement is an automatic proceeding and results from the happening of certain events which are mentioned in order XXII.

That was the view which was taken also by Mr. Justice Walsh in the case of Lachmi Narain v. Muhammad Yusuf.

It seems, however, that this judgement was overruled by the Bench decision which we are now considering, namely, the decision in I.L.R, 44 All. 459. There two learned Judges of this Court said as follows at page 461 of the report:—

“It seems to its that the point is concluded by the decision in Secretary of State for India v. Jawahir Lal, and we think that decision was correct. In order XXII, rule 9(2), it is stated that the plaintiff may apply for an order to set aside the abatement or dismissal. It is quite obvious that a suit cannot be dismissed automatically. It seems to us, therefore, that a formal order declaring that a suit or appeal has abated is necessary before an application under this rule can be entertained.”

All I can say is that with great respect I am unable to follow the opinion of the two learned Judges. It is certainly true that there can be no automatic dismissal of a suit under order XXII. The only provision for dismissal of a suit under this order is to be found in rule 8(2). The case which is there contemplated is one in which the plaintiff has become insolvent, and under rule 8(2) the defendant may apply to the court for the dismissal of the suit on the ground of the plaintiff's insolvency. On that application being made the court may make an order dismissing the suit. Quite clearly there can be no automatic dismissal, for, as has just been pointed out, this dismissal must result from an application made by the defendant. But it does not follow that, because a suit may not be dismissed automatically, the suit does not abate automatically. On the contrary, it seems clear in every way that abatement in the case of a suit or appeal is an automatic proceeding and that for the purpose of producing what is described as the condition of abatement no order of the court is necessary. It does indeed happen in practice that courts do declare that a suit or appeal has abated, but in making this declaration they are merely recording a fact which has happened in law and the abatement does not result in any way from the making of the order. The order is merely a declaration of an existing fact.

With regard to the case of Secretary of State for India in Council v. Jawahir Lal, which is cited as an authority by the learned Judges who decided the case reported in I.L.R, 44 All., referred to above, I am of opinion that this decision does not lay down, that it is necessary that the court should pass a formal order to bring about the abatement of a suit or appeal. It is quite true that certain expressions in the judgement in that case as also in the referring order might lead one to suppose that the making of a formal order was necessary. For example, in the referring order of Ptggott, J., we find the following:— “An order for the abatement of the appeal would certainly follow automatically upon an order rejecting the present application.” Again in disposing of the case the two learned Judges who decided the reference say that “he may, after the order of abatement has been passed, apply to have it set aside on the ground that he was prevented by any sufficient cause from continuing the suit.” These expressions, as I say, might indicate that the passing of an order for abatement was legally necessary. On the other hand, it would appear from another passage in the judgement that the learned Judges were not of the opinion that such an order was required, for they say at page 238 of the report as follows:— “Therefore, as the law now stands, since no application was made under sub-rule (1) within the time allowed by law, the appeal must abate.”

However that may be, it seems to me perfectly clear that the abatement of a suit or appeal is an automatic process and that in order to work an abatement in either case no order of the court is required.

Some of the confusion which has attended the discussion of this question has probably arisen from the fact that under the Code of Civil Procedure, Act No. XIV of 1882, there were certain sections which declared that an order for abatement of a suit might be passed by the court. I may refer in this connection to section 366 of Act No. XIV of 1882. Section 371 also provided certain procedure by which an order for abatement could be set aside. It is also pertinent to notice in this connection that, under the Limitation Act of 1877, article 171 provided a period of sixty days for applications made under section 371 of the Code of Civil Procedure for an order “to set aside an order for abatement,” and the period of sixty days was declared to begin to run from the date of the order for abatement or dismissal. This period of limitation was obviously so framed because of the language of section 371, which, as I have already said, provided for the setting aside of an order for abatement.

If we turn now to Act No. IX of 1908, which was passed in the same year as the present Code of Civil Procedure, we find that article 171 is couched in different language. The article provides a period of sixty days for an application under the Code of Civil Procedure, 1908, for an order to set aside an abatement (not to set aside an order for abatement), and the period of sixty days begins to run not from the date of any order of abatement but from the date of the abatement.

I am satisfied, therefore, that the decision in I.L.R, 44 All., 459, is not a correct decision and ought to be overruled. In my opinion the correct law was laid down in the judgement above referred to, which is reported in I.L.R, 42 All., 540. The true interpretation of order XXII is that in order to work the abatement of a suit or appeal it is not necessary for the court to pass any order.

Sulaiman, J.:— I fully agree. I would add that, according to the English practice (Order 17, rule 9) where any cause or matter “becomes abated,” the solicitor for the plaintiff or person having the conduct of the cause or matter merely certifies the fact to the proper officer, who causes an entry thereof to be made in the Cause Book opposite to the name of such cause or matter.

Mukerji, J.:— I entirely agree. As an additional reason I would refer to the provision contained in sub-rule (3) of order XXII, rule 9.

By the Court.— The case can now be sent back, again to the learned Judges who referred the above matter to this Bench for opinion.

On the return of the case, the following order was passed:—

Sulaiman and Mukerji, JJ.:— The lull Bench having decided that an application for setting aside an abatement must be made within the period of sixty days from the actual abatement, and not from the passing of an order declaring the abatement, we have to consider the application for substitution of names, on the merits. It is admitted that Baneshwar died on the 28th of February, 1924. The applicants' case is that they came to know of the death on the 5th of January, 1925. The question is, admitting this date to be true, whether they acted diligently in coming before this Court with the application for substitution. The period allowed for an application for substitution is ninety days and the present application is beyond time, even if this period of ninety days is computed from the date of knowledge, namely the 5th of January, 1925. In the circumstances, we do not think that there was any diligence on the part of the plaintiffs appellants.

We declare that the Letters Patent Appeal has abated. We set aside the order allowing the appeal and instead give the declaration aforesaid. We make no order as to costs.

Order set aside.

Churya v. Baneshwar

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Churya v. Baneshwar

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