TRADE IMPEX PVT LTD Vs. RAJA MAHENDRAGIRJI

JUDGEMENT

(1.) Both these appeals filed by Trade Impex Private Limited (hereinafter referred to as the "plaintiff") impugn a common judgment and order dated 26.11.1997 passed by the learned single Judge of this Court in Chamber Summons No.557/88 in Suit No.695/78, Chamber Summons No.614/96 in Suit No.536/80, Chamber Summons No.1426/96 in Suit No.695/78 and Chamber Summons No.159/97 in Suit No.695/78. By the impugned judgment and order the learned single Judge dismissed all the aforesaid four Chamber summons which were before him.

(2.) The brief facts which led to the filing of the aforesaid four Chamber summons were as follows :-

(3.) On perusal of the impugned judgment and order passed by the single Judge dismissing the four Chamber summons, it is clear that the Chamber summons were dismissed by the single Judge on the ground that there was no prayer for setting aside abatement in all the aforesaid four Chamber summons. It was held that the question of sufficient cause for condonation of delay only arise if there was an application for setting aside an abatement. That in view of provisions of Order XXII Rule 4 of Code of Civil Procedure, on the deaths of Raja Dhanrajgirji and Dhairyavangirji as no application to set aside abatement was made in any of the four Chamber summons and as a joint decree would have to be passed against the defendants as joint owners, both the suits filed by the plaintiff stood abated. That Section 141 of Code of Civil Procedure would apply to the case and not Section 146. That the question of considering the sufficient cause to condone the delay did not arise at all since there was no application for setting aside abatement of suit. It was lastly held that the plea of the plaintiff, to be exempted from bringing the legal heirs of deceased defendants, could not be granted, in as much as the defendants are joint owners and there would be a joint decree.