MEHTAB CHAND Vs. SHRIRATAN MOHTA

JUDGEMENT

(1.) This suit was filed on 14-8-1945 for redemption of certain jewellery. The written statement was filed on or about 19-11-1945. The defendant died intestate on 15-12-1949, leaving him surviving a widow, Sm. Tarabai and two sons, Sri Ratan and Brij Ratan and his heirs and legal representatives.

(2.) On 16-12-1949, the plaintiff's attorney was informed of the death and on 20-12-1949, the names of the heirs and legal representatives of the deceased were furnished to the plaintiff's attorney. On 4-1-1950, the plaintiff's attorney wrote to the defendant's attorney that he had "written to his client for information". On 28-2-1950, the plaintiff's attorney wrote to the defendant's attorney asking for information about the date of the death of the defendant. That was duly supplied. On 20-3-1950, the defendant's attorney wrote to the plaintiff's attorney that the suit had abated. To that the plaintiff's attorney replied: "I have now been instructed to make the necessary application to the Court." The notice of motion of the application out of which this appeal arises was taken out on 8-5-1950, and the application for setting aside the abatement was moved before Bachawat J. on 10-5-1950 when it was noted as made on that day. The application was heard on 23-5-1950 and was dismissed by his Lordship. No judgment was delivered. The petition in support of the notice of motion is not verified by the petitioner himself but by one Janaki Nath Roy who is a clerk in the employ of the plaintiff's attorney. The relevant paragraph in the petition is para 8 in which it is stated that the petitioner on that date, namely, the date when the petition was affirmed, was at Jaipur: he was informed of the death of the defendant on or about 22-12-1949 and

(3.) In the affidavit in reply the plaintiff sets out a medical certificate which runs as follows: