GOVIND RAO Vs. MAHADEV

JUDGEMENT

(1.) Two appellants filed the present appeal which according to the respondent, has abated. The second appellant admittedly died on 7th October, 1974, but 90 days passed and thereafter the 60 days limited by the law also passed without any application for setting aside the abatement. The first appellant came up with an application on 31st March, 1975 for setting aside the abatement but he was 85 days beyond the date on which abatement took place, and 25 days beyond the date limited by law for moving the Court to set aside the abatement. This delay of 60 days plus 25 days has to be explained by the first appellant and he has to make out sufficient cause as to why he could not come to court in time.

(2.) The parties are close relations and it is admitted that the first appellant was present for the funeral of the second appellant. What is more, the respondent had filed an application to declare that the appeal had abated as early as 8th February, 1975 and still no application for setting aside the abatement in time.

(3.) We have heard long arguments from both the appellant-petitioner and the respondent. Two points were urged by Mr. Lokur in support of his case that the abatement must be set aside. Firstly, he argued that his client was nearly 80 years old and his mental condition, as proved by the certificate produced subsequently, was such that he suffered from loss of memory, listlessness and loneliness, his sons being away from him. The second point urged was that the decree was divisible and that, the worst coming to the worst, the award in so far as the second appellant was concerned - the appeal relates to the setting aside of the award - was divisible and the first appellant's appeal must be treated as still surviving.