BIRBAL Vs. HARLAL SADASUKH

JUDGEMENT

(1.) THIS second appeal arises out of a suit by Hartal plaintiff-respondent for the possession of 227 'bighas' 11 'biswas' of land. The plaintiff also sought a declaration to the effect that an order passed by the Collector on 1-4-1950 was invalid. The facts which have given rise to this appeal are briefly as follows.

(2.) GHAYAS-UD-DIN and Siraj-ud-Din, two Muslims, were originally owners of the land in dispute. They mortgaged this land with possession to defendants 1 to 3 and the father of defendants 4 and 5 on 25-5-1945 for a sum of Rs. 6,000/ -. Possession was made over to the mortgagees. A little later, on 21-2-1946, the owners executed a lease deed in favour of the plaintiff for a sum of Rs. 10,000/ -. The lease was a perpetual one and the deed was registered. Out of the total consideration Rs. 5,000/- were paid by the plaintiff in cash and the remaining Rs. 6,000/- were left in deposit for payment to the previous mortgagees, namely defendants 1 to 5. The lease deed gave the plaintiff the right to redeem the propsrty from the mortgagees. In order to give effect to this term the plaintiff made an application to the Collector on 22-4-1949 for the redemption of this land under the Redemption of Mortgages Act. The owners Ghayas-ud-Din and Siraj-ud-Din had, in the meantime, left India on the partition of the country and the property vested in the custodian as evacuee property. While this application of the plaintiff was pending before the Collector an Ordinance was passed on 25-7-1949 and this Ordinance was later succeeded by Act 36 of 1949 whereby all leases effected by evacuees were to be considered as having terminated with effect from 25-7-1949. Either in ignorance of this provision of the law or for some other reason the Collector passed an order of redemption in favour of the plaintiff on 5-10-1949. It is clear that the legal position was never placed before the Collector. The Custodian, however, made an application to the Collector for the review of his previous order and the Act whereby the losses made by evacuee were terminated was relied upon by the Custodian. The Collector with the permission of his superior reviewed his previous order and on 1-4-1950 set aside the order of redemption passed by him. The Collector apparently acted under the provisions of the Punjab Land Tenancy act which gives power to the Collector to review his orders in certain conditions. The mortgagees had in the meantime filed a suit under Section 13 of the Redemption of mortgages Act. This suit was dismissed on 2-6-1950. Therefore at this stage the net result was that the remedy which the aggrieved party was entitled to pursue under law had failed and so the order of redemption stood good as far as the defendants were concerned. The Collector had, however, reviewed his order at the instance of the Custodian and the plaintiff was held not entitled to redeem the land. The plaintiff then filed the present suit on 23-11-1950 for a declaration that the order of the Collector reviewing the previous order was invalid as it was not warranted by law and he also prayed for possession of the property which had been ordered to be redeemed by him. This suit was decreed on 29-12-1951 but a further complication had in the meantime arisen. While the suit was pending, Surja one of the defendants died on 28-7-1951 and no attempt was made by the plaintiff to bring his legal representatives on record. The decree followed on 29-12-1951 as I have already mentioned above and then an appeal was filed by the mortgagee-defendants including the legal representatives of Surja, namely, his sons and widow. This appeal was filed on 29-1-1952, and one of the grounds taken up was that the decree was a nullity inasmuch as it had been passed against a dead person. The Custodian filed a separate appeal. This appeal was filed on 6-2-1952. The plaintiff now made an application to bring the legal representatives of Surja, on record end also prayed that the abatement of the suit, if any, be set aside. This application was made on 7-4-1952 i. e. , more than eight months after surja's death. The District Judge made an enquiry into the questions whether Surja had died on the date alleged and whether the abatement should be set aside. He considered the pleas of the parties and also took their statements on oath and then he framed the following two issues :

(3.) WITH regard to the question of abatement it is clear that abatement can be set aside even after the statutory period of CO days Ms expired. Abatement takes place 90 days after the death of the defendant or respondent. So the opposite party is allowed a period of 150 days in which to apply for setting aside the abatement, but if for some reason he cannot move the Court in this respect he is entitled to extrusion under Section 5 of the Limitation Act. The effect of abatement is not that a decree against, a dead person is a nullity for all purposes but that the decree can be set aside and the legal representatives given an opportunity of representing their case before the court. In this case the first point to consider is whether there was sufficient ground for not making an application within the statutory period of 150 days. The plaintiff's contention was that he did not know of Surja's death. He has stated this on oath and this statement was accepted by the learned District Judge. Now ignorance of the death of a party is a very good ground for not moving the Court to bring his legal representatives on record, for a person cannot think of making an application in this behalf unless he knows that the party is dead. The defendants did not inform the Court and surja's counsel continued to appear on his behalf. The plaintiff stated on oath that he did not know of Surja's death until much later. In the circumstances it seems to me that the plaintiff has shown sufficient cause for not making the application in time, and the learned District Judge was justified in extending limitation in this respect.