JAGDISWAR PRASAD MISRA Vs. HARSARAN RAI

JUDGEMENT

(1.) This is a second appeal from an order of the learned Subordinate Judge of Shahabad setting aside a decision of a learned Munsif on a preliminary point and remanding the case to be heard on its merits.

(2.) The plaintiff in the suit was an unsuccessful claimant whose application under Order 21, Rule 100, Civil P.C., had been dismissed. He had preferred the suit giving rise to this appeal to challenge the order of dismissal under Order 21, Rule 103, Civil P.C. The period of limitation for such a suit is one year from the date of the order made in proceedings under Order 21, Rule 100, Civil P.C.

(3.) The application under Order 21, Rule 100, Civil P.C., was dismissed on 31st January 1938, and on 23 July 1938, the plaintiff filed his plaint in the suit brought under Order 21, Rule 103, Civil P.C. The suit was brought well within the period of one year allowed by the Limitation Act. In that plaint as filed, however, the present appellant the auction-purchaser was impleaded as a major defendant, whereas it is now admitted that he was a minor. Several adjournments were given to the plaintiff to effect service on the appellant, but eventually on 30 January 1939, the appellant was struck out from the suit and his name expunged from the array of defendants and thereafter the suit proceeded in his absence.