The plaint in this suit was filed on the 10th September 1878, in the name of Bhoyrub Doss Johurry, as sole plaintiff. On the 9th of November of the same year, Bhoyrub Doss Johurry died leaving a will. Probate, however, of this will was not obtained until the 5th of April 1879, on account of the necessity of having special citations issued and of difficulties arising from appointment of particular persons as executors.
Bonnerjee, for the executors, obtained a rule nisi, calling upon the defendant to show cause why the suit should not be revived in the names of the executors, or why the suit should not abate under section 366 of the Civil Procedure Code, and in the event of an order being made for abatement, such order should not be set aside under section 371, and the names of the executors be entered upon the record.
Cracknall, for the defendants, showed cause.
The first part of the rule, he contended, could not stand, as here there was a sole plaintiff, and no application to revive the suit had been made under section 363 within sixty days from the date of the plaintiff's death—sixty days being the period within which such an application must, under the Limitation Act, Schedule II, Art. 171, be made. If the suit abated under section 371, and an application was made under that section to set aside the order of abatement, it was necessary for the applicants to show that due diligence had been exercised. Here the plaintiff died in November 1878, and no application had been made until now. If there were difficulties in the way of obtaining probate, the proper course was to apply for limited administration. Under section 4 of the Limitation Act this application must be dismissed as having been made out of time.
Wilson, J.:— The first question whether I have power to make either of the orders asked for is important. Section 363 of the Code provides that “if there be more plaintiffs than one, and any of them dies, and the cause of action does not survive to the surviving plaintiff or plaintiffs alone, but survives to him or them and the legal representative of the deceased plaintiff jointly, the Court may, on the application of such legal representative, enter his name on the record in place of such deceased plaintiff, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs and such legal representative.” Section 365 provides that, “in the case of the death of a sole plaintiff or sole surviving plaintiff, the Court may, where the cause of action survives on the application of the legal representative of the deceased, enter his name in the place of such plaintiff on the record, and the suit shall thereupon proceed.” Article 171 of the Limitation Act says the period of limitation for applications under these sections shall be sixty days from the date of the plaintiff's death. The result is, that as to the first part of the present application, which is to revive the suit under section 365, the applicants are barred. Section 366 of the Code provides that, “if no such application (that is no application under section 365) be made to the Court by any person claiming to be the legal representative of the deceased plaintiff, the Court may pass an order that the suit shall abate, and award to the defendant the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff, or the Court may, if it think proper, on the application of the defendant, and upon such terms as to costs, or otherwise as it thinks fit, pass such other order as it thinks fit for bringing in the legal representative of the deceased plaintiff, or for proceeding with the suit in order to a final determination of the matter in dispute, or for both those purposes.” When the order is made under the first part of this section the suit abates. Section 371 says that “when a suit abates or is dismissed under the chapter no fresh suit shall be brought in the same cause of action. But the person claiming to be the legal representative of the deceased bankrupt or insolvent plaintiff may apply for an order to set aside the order for abatement or dismissal; and if it can be proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.”
No period of limitation is specifically provided for applications under the last two sections, and the period of limitation, therefore, must come under Art. 178 of the Limitation Act, which gives three years from the time when the right to apply accrues. Under these two sections, there is, I think, power to deal with such cases as the present by declaring the suit abated under section 366, and at the same time reviving it under section 371.
The question then is, whether the applicant was prevented by any sufficient cause from continuing the suit. I think that he was. Mr. Cracknall says sufficient cause was not shown because the applicant might have applied for limited administration, but his omission to apply for such an administration, which might or might not have been granted, was not, I think, such neglect as should disentitle him to relief.