PYARELAL Vs. MODI SIKHARCHAND

JUDGEMENT

(1.) THIS is plaintiffs' appeal against the dismissal of a part of their claim for damages by the 2nd Civil Judge, 1st CJass, Sagar, in civil suit No. 11-B of 1947.

(2.) THE suit was instituted by Pyarelal and Pan-nalal, sons of Jankiprashad, Babulal, and Narayan-dass and Bhagwandass, sons of Babu Surajdin. They were carrying on business of purchase and sale of grain as partners of a registered firm styled durga Prashad Ganesh Dass, shortly called Durga Ganesh. They entered into a contract with the defendant on 6-7-1947 for purchase of his stock of linseed at satna. Out of this stock, a lot of 2500 bags was lying in the godown of the defendants' commission agent, Ramchand Rampratap, which was sold to the plaintiffs. O. R. Satna at Rs. 44/13/9 per bag of 90 seers net, after packing them in new gunny bags. The lower Court has found that the defendant broke the contract and was liable in damages to the plaintiffs. It has, however, determined the damages at the rate prevailing at Satna, arid not at Lillosh (Calcutta) on 28-7-1947 when the contract was broken. In this view, it awarded to the plaintiffs, Ks. 1914/1/- for damages instead of Rs. 9524-9-0 is claimed. This appeal was accordingly filed by the plaintiffs for claiming the balance of Rs. 7610/8/ -.

(3.) DURING the pendency of the appeal, Pannalal died on 17-2-1954 and his legal representatives were duly brought on record. Pyarelal meanwhile also died on 1710-1954. An application for substitution of his legal representatives was filed on 20-1-1955 after the period of limitation. Another application for setting aside the abatement was filed on 25-2-1955. These applications were dismissed by an order of this Court on 28-3-1955, and a Letters Patent appeal from the order was also dismissed on 18-7-1955 in motion hearing. The appeal has thus abated so far as pyarelal is concerned. The question is if it has abated as a whole.