- (1.) Plaintiff's suit was dismissed by the trial Court as having abated due to death of Phulla Singh defendant No. 93 as his legal representatives had not been brought on record within time. Aggrieved against that judgment and decree, plaintiffs filed the present first appeal.
(2.) Plaintiffs had filed the present suit for redemption of mortgage dated May 16, 1928, executed by Gian Chand, Baldev Dass, Basheshar Dass and Madan Lal sons of Thakur Dass for consideration of Rs. 22000/-. Phulla Singh defendant No. 93 was one of the co-mortgagees. Earlier the suit was dismissed.
(3.) It appears Phulla Singh defendant No. 93 died on 28th/29th November, 1972. One Gurmukh Singh defendant No. 86 made an application on June 2, 1973, under Order 22 Rule 4 of the Code of Civil Procedure (hereinafter referred to as the Code) stating therein that Phulla Singh's legal representatives had not been brought on record by the plaintiffs and, therefore, the suit be dismissed as having abated. Plaintiffs filed reply to this application on June 12, 1973 denying the factum of death of Phulla Singh. On June 14, 1973, the trial Court struck the following issue :- "Whether Phulla Singh defendant No. 93 has died and what is the effect of not moving any application for bringing his legal representatives so far ?" In order to prove the above issue Narinjan Singh son of Phulla Singh appeared in the witness box and stated that his father Phulla Singh had died on November 28, 1972 and that he was survived by his four sons and two daughters. Death certificate was also produced on record showing that Phulla Singh had died on November 28, 1972. After this, the case was being adjourned for evidence of the plaintiff-respondents and ultimately on 28th August, 1973, present application was made by the plaintiffs to bring on record the legal representatives of Phulla Singh. It was pleaded that plaintiffs came to know about the death of Phulla Singh on November 28, 1972 from the statement of Niranjan Singh made on August 10, 1973. Plaintiffs further stated that they had been making frantic efforts to find out the whereabouts of Phulla Singh from the villagers but every one in the village had conspired not to let him know about the whereabouts of Phulla Singh. It is further asserted that he came to know about the death of Phulla Singh and his legal representatives on August 10, 1973 and the present application had been filed by him within time from the date of knowledge about the death of Phulla Singh.;