- (1.)This is an appeal from a decision of Mr. Justice Engineer given in chambers, by which he set aside an abatement.
(2.)The material facts are that the plaint in the suit was declared on June 10, 1936, and the claim as against defendant No. 1 was for payment of a certain share of costs incurred in a suit for which the plaintiffs allege defendant No. 1 was liable to them. Defendant No. 1 died on January 30, 1937, and the plaintiffs were informed of that fact on February 8. They then had ninety days in which to bring the heirs on record under Article 177 of the Indian Limitation Act, and they did not in fact bring the heirs on record within that time. That being so, under Order XXII, Rule 4, the suit abated.
(3.)By Rule 9(1) it is provided that where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. Sub-rule (2) provides that if it is proved that the plaintiff was prevented by any sufficient cause from bringing the heirs on record within the requisite time, the Court shall set aside the abatement. On June 28, 1937, a summons was taken out, asking to have the abatement set aside, and on that summons the learned Judge made the order from which this appeal is brought.
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