TARAKDASI DEBI Vs. PARESH CHANDRA SAHA

JUDGEMENT

(1.) This appeal is by the judgment-debtor's representatives against the respondent, who, again, is the legal representative of the original decree-holder, the original judgment-debtor and the original decree-holder having both died in the course of the present litigation.

(2.) The decree is one for ejectment and costs. It was obtained a long time back. From the decree of the original Court, there was an appeal to the lower appellate court and, thereafter, a second appeal to this Court by the original judgment-debtor. During the pendency of that second appeal, the decree-holder first died in January 1956 and thereafter, it appears, the judgment-debtor died in or about the year 1957. The appeal, however, remained on the file of this Court until it appears to have been disposed of by an order of my learned brother, Banerjee, J., passed, on March 17, 1959, to the following effect:

(3.) On the point of limitation, the appellant's objection was to this effect that, as, in the second appeal, mentioned hereinbefore, the sole respondent had died in 1956 and the appellant in or about the year 1957, the appeal came to an end, at least, in 1957, and the present execution, filed on June 9, 1961, was time-barred, as it was filed beyond three years from the said termination of the second appeal. The appellants contend as part of this submission that the order of Banerjee, J. declaring that the appeal has abated would have no effect on limitation, as, under the law, the abatement would take place, as a matter of course, on the death of the party concerned irrespective of any order from Court and, indeed, no order of the Court was or would be necessary in that behalf. It was further contended that the order of Banerjee, J. was, in no sense, a judicial order but only an administrative order and could not be effective or relevant for purposes of the relevant Article 182(2) of the Indian Limitation Act. This submission of the appellants has been rejected by both the courts, relying, primarily, on a decision of this Court, reported in Gohur Bepari v. Ram Krishna Saha, 32 Cal WN 387 (AIR 1927 Cal 760). That decision has been sought to be distinguished by Mr. Banerjee, appearing for the appellants before me, on the ground that, in the first place, that was a case, where the abatement had occurred, not as a result of the death of the sole appellant, as in this instant case, but as a result of the death of the sole respondent, and, further, that, in that case, the order, declaring the abatement, or the declaration of abatement was made when, at least, one of the parties was alive. In the present case, Mr. Banerjee argues, the declaration by Banerjee J. was made at a time, when both the appellant and the respondent was dead and would thus, on that ground alone and apart from anything else, be wholly ineffective in law, at least, for purposes of limitation.