- (1.) ASHARAFILAL deceased and Narainlal filed a suit in the Court of Civil Judge. Bundi, against Durgalal, his sons Hiralal and Bhuvaneshwar and one Gapallal for redemption of mortgage of certain immovable property on payment of Rs. 3,280/and, in the alternative, for the possession of the property. The learned Civil Judge by his judgment D/- 16-5-1962 passed a preliminary decree for redemption of mortgage in favour of the plaintiffs on deposit of Rs. 3,280/-in Court within a month from the date of the preliminary decree. Aggrieved by the said decree, the defendants Durga-lal and his sons preferred an appeal in the Court of the District judge. Kotah. During the pendency of the appeal, plaintiff Asharafilal died on 6-41966. The defendants on 19-4-1966 moved an application along with the postcard which they had received from the two sons of Asharafilal intimating the date of Ashara-filal's death. It was mentioned in the application that Asharafilal had died on 6-4-1966 and the defendant-appellants be given lime for finding out the legal representatives of the deceased and to take steps for their substitution. The learned District Judge on that application ordered that the hearing of the appeal be fixed on 14-7-1966 and in the meantime, the defendant-appellants may bring the legal representatives of deceased Asharafilal on record. No application was made for bringing the legal representatives of Asharafi Lal on record within 90 days of his death. The appeal therefore abated on the expiry of 90 days, that is, on 6-71966. On 14-7-1966 the defendant-appellant submitted an application with the prayer that the two sons of Asharafilal namely, Hariram and Dr. Shivram be brought on record. This application was opposed by Hariram and Dr. Shivram on the ground of limitation. The learned District Judge dismissed the application on 27-10-1966 as time-barred and dismissed the appeal as having abated. The relevant portion of the order dated 27-10-1966 passed by the learned District judge runs as under:- "now it is an admitted position that Asharafilal one of the respondent-plaintiffs, died on 6-4-1966. This application being 90 days after his death is therefore clearly time-barred. That their earlier application dated 19-4-1966 for being allowed time to bring the legal representatives of Asharafilal on record without naming any of them cannot also extend the period of limitation. Hence this appeal abates against the deceased-respondent. Again as the interest of the deceased-respondent in these proceedings is joint and indivisible and cannot be separated from the rest of the respondents, it is also impossible to proceed with the appeal. Hence the appeal of Durgalal and others fails No order is made as to costs. " The defendant Durgalal thereafter moved an application supported by his affidavit on 2-11-1966 for setting aside the abatement. The learned District Judge rejected that application. The present appeal is directed against the order of the learned district Judge rejecting the application for setting aside the abatement,
(2.) MR. N. M. Kasliwal. the learned advocate for the defendant-appellant, has raised the following points before me in this appeal:-- 1. That the application dated 19-4-1966 had been made within the period of limitation of 90 days provided by Article 120 of the Limitation Act. 1963 and that application should have been treated by the learned district Judge as one for bringing on record the legal representatives of asharafilal under Rule 4 read with Rule 11 of Order 22. Civil P. C. 2. That the application dated 14-7-1966 for impleading the legal representatives of Asharafilal had been made while the period of limitation provided by Article 121 of the Limitation Act. 1963 had not expired and that application should have been treated by the lower appellate Court as an application for setting aside the abatement. Reliance has been placed on Bachanram v. Gram. Panchayat Jonda, AIR 1971 Punj 243. 3. That the lower Court has committed an error in holding that the appellant failed to show that he was prevented by sufficient cause from making in time the application for substitution of the legal representatives of deceased Asharafilal. and 4. That after the preliminary dtcree, the provisions of Order 22, Rule 4, civil P. C, do not apply to cases of death of the defendant or respondent and there can be no abatement of suit or appeal in such a case. Reliance has been placed on Pooranchaiid v. Shriram, AIR 1963 Raj 245.
(3.) I have heard learned counsel tor the parties and. in my opinion, the decision of the learned District Judge is right Rules 3 and 4 of Order 22. Civil P. C. lay down the procedure to be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one of several defendants or of sole defendant in similar circumstances. The procedure requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit-The rules do not say who is to present the application, but ordinarily it is the plaintiff who presents the application as by abatement of the suit the defendant stands to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased defendant the effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on various considerations inter alia whether the suit between the parties other than the deceased can be said to be properly constituted or can be said to include all [necessary parties for the decision of the controversy before the Court. That question does not arise in the present case as it has been rightly admitted that in the absence of the legal representatives of the deceased, the appeal before the learned District Judge could not have proceeded further and the abatement of appeal against Asharafilal would make the appeal Infructuous against others also. Now. Sub-rule (1) of Rule 9 of order 22, Civil P. C. bars a fresh suit The only remedy open thereafter is to get the abatement of suit set aside under Sub-rule (2) of Rule 9 of Order 22 and this he can do by making an application for that purpose within time as prescribed under article 121 of the Limitation Act. 1963. The Court will set aside the abatement if it is found that the applicant was prevented by any sufficient cause from continuing the suit. It may be mentioned that in view of Rule 11 of Order 22, the words 'plaintiff, 'defendant' and 'suit' in Order 22 include 'appellant', 'respondent' and 'appeal' respectively.;