Gujrati v. Sitai Misir

Banerji, J.:— This application purports to be an application to set aside the abatement of an appeal. One out of several respondents to the appeal is dead, and no application was made within the period of ninety days allowed by law for bringing his legal representatives on the record. No order declaring that the appeal has abated either wholly or against the respondent who is dead has yet been passed. But before the passing of such an order the present application has been made on the ground that the applicant was not aware of the fact of the death of the respondent before the expiry of the ninety days. The application is opposed on the ground that it is premature inasmuch as no order declaring; that the appeal has abated has yet been passed. In answer to this contention the ruling of a learned judge of this Court, reported in I.L.R, 42 All., 540, has been cited. I have doubts as to the correctness of the view taken by the learned Judge in that case. I therefore direct that this application be laid before a Bench of two Judges.

The next order was by the Division Bench.

Ryves and Gokul Prasad, JJ.:— This purports to be an application to set aside an order of abatement. It appears that one of the respondents died in March, 1921, and an application was put in by the learned vakil for the appellant after ninety days had expired. The learned vakil in the application stated that the appeal as against the deceased respondent had abated and no applied for an order under order XXII, rule 9(2). The matter came before a learned Judge of this Court who was of opinion that the application was premature inasmuch as there was no order of the Court declaring the appeal to have abated. As, however, a learned Judge of this Court in Lachmi Narain v. Muhammad Yusuf , was of opinion that on the expiry of ninety days after the death of a respondent, if no application was made within ninety days to bring his representatives on to the record, the appeal automatically abated and it was not necessary that a formal order should have been passed to that effect before an application under order XXII, rule 9(2), could be made. As the learned Jude before whom this application first came, doubted the correctness of the ruling, the matter was referred to two Judges and comes before us. It seems to us 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 an appeal has abated, is necessary before an application under this rule can be entertained. We therefore dismiss this application and order the appeal to, be put up in the ordinary course. In order to save time we direct that the appeal be put up tomorrow before us for orders.

A formal order declaring the appeal to have abated as against one of the respondents was then passed:—

Ryves and Gokul Prasad, JJ.:— We are informed that in this case one of the respondents died more than three months ago and no steps have been taken to bring his legal representatives on the record. We declare this appeal to have abated as against him.

And the appellant presented a fresh application to set it aside:

Ryves and Gokul Prasad, JJ.:— This application has been presented by Mr. Mithal to-day. Mr. N. Upadhiya who represents the respondents is present. Let this matter be put up at an early date for disposal along with the previous application for setting aside the order of abatement disposed of by our order of yesterday.

In the end the order of abatement was cancelled:—

Ryves and Gokul Prasad, JJ.:— This is an application to set aside an order of abatement in an appeal pending in this Court. We are satisfied from the affidavit filed on behalf of the appellant that sufficient cause his been made out to explain why there was a delay in bringing the heirs of the deceased Babu Lakshmi Das on to the record. We therefore allow the application, set aside the order of abatement and direct that the appeal be put up in the ordinary course. We make no order as to costs.