SHIVASHANKER MAHTON Vs. KAMAKHYA NARAYAN SINGH

JUDGEMENT

(1.) This application arises out of proceedings for the ascertainment of mesne profits. The plaintiff obtained a decree for recovery of possession of a certain village with mesne profits up to the date of delivery of possession. The application for the ascertainment of mesne profits was made on 17 September; 1926, together with a number of similar applications; but the hearing of this application was delayed, pending the decision of an appeal in the High Court on the question of whether the applications were barred by limitation. The present application was revived in November 1929. In the following March the peon who was deputed to serve the processes on the defendants reported that one of them named Tarman Mahton was dead. On 28 July the defendants filed a petition, alleging that Tarman Mahton had died before the date of the decree.

(2.) Four months later, on 29 November the plaintiff applied to the court for time, to take steps for the substitution of the heirs of Tarman Mahton; and he was allowed time until 23 December 1930. On that date a formal application was filed, which was allowed by the Subordinate Judge who found that the suit had abated, but that sufficient ground had been made out by the plaintiff for setting the abatement aside. He therefore directed that the sons of Tarman Mahton should be brought on the record in the place of the deceased defendant. The defendants appealed to this Court, but their appeal was dismissed on the ground that the order of the Subordinate Judge was not appealable; and they then applied for revision of his order.

(3.) Mr. Sarju Prosad on behalf of the petitioners argues that the finding of the Subordinate Judge that the plaintiff was ignorant of the death of Tarman Mahton until the defendants filed their petition on 26 July 1930 does not in itself amount to justification for his waiting until 23 December before he applied for the substitution of the heirs of the deceased defendant. An application was made on the 29 November, when the court allowed time until 23 December; but even this application was not within the period prescribed by the Limitation Act. On the question of whether the suit should be regarded as having abated if an application for substitution was not made in time, Mr. Sarju Prosad relies upon the decision in Jankinath Singha Ray V/s. Nirodbaran Ray AIR 1980 Cal 422 where in it was held that Rules 4 and 9, Order 22 applied to proceedings for the ascertainment of mesne profits, which were governed by Civil P.C., 1908.