Patherya, J. - (1.) This appeal has been filed from the decree dated 29th July, 2004 passed by the Judge, 8th Bench, City Civil Court at Calcutta. Title Suit No. 2169 of 1994 was filed by one Jagabandhu Sen, the son of Sital Moyee Sen. From a perusal of the Geneological table placed before us and annexed in the paper book we find that the predecessor in interest was one Kristo Lal Dutta. Kristo Lal Dutta was married to Sarat Sundari Dutta, since deceased and they had three daughters namely, Durga, Lakshmi and Annakali and son namely, Shyama Charan. Kristo Lal Dutta bequeathed his properties by his last Will and testament in favour of his only son Shyama Charan as an absolute owner in the subject premises. Shyam Charan was married to one Bijoli Bala. Shyama Charan and Bijoli Bala did not have any issue and were childless. Shyama Charan pre-deceased his wife. His widow, who died in 1982, bequeathed the subject premises to the defendant No. 1, Sanat Kumar Sen under a Deed of Trust. It will not be out of place to mention that except for Sital Moyee, the other daughters of Kristo Lal predeceased Bijoli Bala. Sital Moyee died in 1992 and it is because of this, she filed T. S. No. 1201 of 1983 against Sanat Sen, the defendant No. 1 seeking cancellation of the Trust Deed and filing such suit in 1983 she arrayed proforma defendant No. 2 but no relief was claimed against the proforma defendant and the only defendant against whom she claimed reliefs was Sanat. An order was passed in T. S. No. 1201 of 1983 on 30th March, 1987 and having no pecuniary jurisdiction the plaintiff Sital Moyee was directed to take return of the plaint for presenting the same to appropriate forum.
(2.) Being aggrieved by the order passed against her, Sital Moyee filed F. A. 2517 of 1987 before the Calcutta High Court. During the pendency of F.A. 2517 of 1987 Sital Moyee died on 20th May, 199 Before she died she bequeathed her right, title and interest in favour of her sons, Jagabandhu and Mahadev, by her last Will and testament dated 23rd July, 1989. We do not know the fate of F. A. 2517 of 1987 filed by Sital Moyee but in Title Suit No. 2169 of 1994 Jagabandhu the plaintiff therein has submitted that due to financial problems and ill health suffered by him he could not take steps to substitute his name or the legal heirs and representatives of his deceased mother and F. A. 2517 of 1987 was abated. This we find from the plaint filed by Jagabandhu in 1994. Therefore, F. A. 2517 of 1987 was abated and as a consequence thereof Jagabandhu did not take any step in the suit of his mother Sital Moyee being T. S. No. 1201 of 1983. Therefore, not only F. A. 2517 of 1987 so also T. S. No. 1201 of 1983 stood abated. Realising that no step was taken under Order 22, Rule 3 of the Code of Civil Procedure, Jagabandhu proceeded to file T.S. 2169 of 1994 and in doing so did not consider the provisions of Order 22, Rule 9 of the Code of Civil Procedure.
(3.) Counsel for the appellant submits that although the appeal has abated as it has been done in the instant case, the suit survives. This point cannot be accepted by uarus the appeal has abated which was filed in 1983 challenging the pecuniary jurisdiction and dismissed. The appeal having abated, the question of the suit surviving cannot exist. It is axiomatic that the appeal having abated the suit of Sital Moyee has also abated and it is for this reason that the issue raised before us cannot be accepted and is rejected.;