DAULAL PHUMRA Vs. PHANI BHUSAN MANDAL

JUDGEMENT

(1.) THIS is an application, substantially for setting aside the abatement of a suit. The suit was filed in 1953 on a hundi under Order 37 of the Code of Civil Procedure. On an application by the defendant No. 2, Sitanath Paul, for leave to enter appearance and defend the suit, leave was granted on certain terms with which he duly complied and filed his written statement. It appears that in March 1955 the affidavits of documents were filed by the respective parties and the suit was lying ready to be transferred to the prospective list. On 21st August 1957, for some reason, the suit appeared in the special list and by an order made on that date the suit was placed in the prospective list.

(2.) THEREAFTER, the suit was not heard of until it appeared in my warning list of May 26, 1966. It appeared in the daily list on 31st May and again on 2nd June. On the latter date, Mr. S. N. Deb, solicitor for Sm. Surabala Dassi, the mother and one of the legal representatives of Sitanath Paul stated in Court that Sitanath had died on 2nd June 1962 and the suit has abated against him. Thereupon, on the prayer of the plaintiff, the suit was adjourned by me for a fortnight to enable the plaintiff to make an application for setting aside the abatement.

(3.) ON the 7th June 1966, Mr. S. N. Deb wrote to the plaintiff's solicitors messrs. P. C. Ghose and Co. in these terms:-You are aware that the defendant no. 2, Sitanath Paul had died intestate on the 20th June 1962, leaving my client, one of his heirs and legal representatives and the suit against him has abated. In reply, Messrs. P. C. Ghose and Co. wrote on the 8th June, 1966 that their client, the plaintiff had since come to know that the defendant No. 2, Sitanath had died leaving him surviving certain heirs The names of the heirs and their relationship with the deceased were indicated in the letter.