MANINDRA KUMAR BOSE Vs. SANTI RANI BISWAS

JUDGEMENT

(1.) This Rule was issued at the instance of the pltf. of Title Suit No. 39 of 1944 of the Subordinate Judge of Nadia.

(2.) The facts briefly are these : The suit was instituted on 10-7-1944 against one Surendra Nath Biswas. On 15-9-1944 all proceedings in the suit were stayed Under Section 34, Bengal Agricultural Debtors Act. On 22-10-1946 Surendra died leaving behind him as his heirs his three sons Sudhansu, Himanshu & Biranshu. On 27-7-1949 the stay order under the Bengal Agricultural Debtors Act, was vacated & prior to that on 4-9-1947 an appln. was made by the petnr. for substituting the heirs of Surendra, namely, Sudhansu, Himansu & Biransu in the place of Surendra. That appln. remained pending. On 27-10-1947 Biranshu died leaving behind him as his heir his widow Santirani. On 27-10 1949 the petnr. filed an appln. for substitution of Santirani as legal representative of Biransu & for the amendment of the plaint after such substitution. To this appln. an objection was filed by the defts. in the suit who are the opposite parties in the present Rule. Pending the disposal of that appln. a fresh appln. was filed by the petnr. for setting aside the abatement of the suit as against Biransu. To this also there was an objection filed by the opposite parties. Both these applns. were heard together & on 13-3-1950 the learned Subordinate Judge substituted Sudhansu, Himansu & Biransu as heirs of Surendra, but the Ct. refused to substitute Santirani as the heir of Biransu. There were two appeals. One by the opposite parties by which they challenged the decision of the learned Subordinate Judge setting aside the abatement as against Sudhansu, Himansu & Biransu. Against the order refusing to set aside the abatement of the suit as against Biransu the petnr. appealed. Both the appeals were dismissed.

(3.) The opposite parties took no further steps but the petnr. has moved this Ct. Under Section 115, Civil P. C against the decision of the learned Dist. J., refusing to set aside the abatement against Biransu. The learned Judge has held that the petnr. knew of the death of Biransu & did not apply for substitution of Biranshu's heir within 90 days of such knowledge. The Ct. held that the petnr. was late by one day even if the period of stay order is excluded from consideration.