OM SARUP NAND LAL Vs. GUR NARAIN

JUDGEMENT

(1.) THIS order will dispose of Regular First Appeals Nos. 71 of 1955 and 43 of 1956 along with the cross-objections preferred by the respective respondent in both these appeals.

(2.) IN Regular First Appeal No. 71 of 1955, a preliminary objections has been raised on behalf of the respondent Gurnarain etc. , by Shri Tuli that the appeal has abated in to on account of the death of Mukand Lal respondent on 16-12-1956 for bringing on record of whole legal representatives a petitioners was filed as late as 6-61957. Time both for bringing on record his legal representatives as well as for setting aside the abatement has according to Shri Tuli expired by the middle of may, 1957. The only reason for this delay given by the appellant is want of the appellant resided about 300 miles away from his place of residence. Shri Tuli has also laid stress on the submission that according to the appellant he came to know of Mukand Lal's death from the notice of the application filed by Shri Ruli's client in the cross-appeal for bringing on record the legal representatives of the deceased by the exact date of knowledge thus acquired has also been disclosed. It is emphasised that the summoned on this application. should have been served on him on 7-5-1957 and even form that date nearly a month was taken in presenting the petitioners to this Court. Under S. 5 of the Limitation Act it is for the appellant to explain each individual day's delay for securing benefit of extension of period and such explanation according to Shri Tuli is wanting. In support of-the objection our attention has been draw into Jagar v. Mst. Natho AIR 1960 Punj 207 Durga dass v. Des Raj 63 Punj LR 163 Firm Dittu Ram Evedan v. Om Press Co. , Ltd. , ILR (1960) Punj 935: (AIR 1960 Punj 335 FB) and the State of Punjab v. Nathu Ram air 1962 SC 89. It has also been contended that the decree being joint and indivisible against all the defendants abatement of the appeal as against Mukand lal deceased must result in its total abatement as against all the respondent.

(3.) SHRI Awasthy has in reply submitted that the appellants application for bringing on record that legal representatives of Mukund Lal deceased and for setting aside the abatement had been granted subject to all just exception on 24-6-1957 by a learned Singly Judge of this Court. After that date this appeal came up for hearing on two occasions before two different Benches and since the respondent did not urge this objection at that stage it must be deemed to have been waived. He also laid emphasis on the absence of nay ocurnter-affidavit controverting the appellant's affidavit on the point. He has in this connection referred us to the decree-sheet at p. 175 printed paper-book. According to his submission decree was really passed only in favour of the plaintiffs with the result that the absence of mukand Lal defendant No. 3 from the array of respondent in this appeal cannot affect the adjudication of the appeal on the merits so far as the remaining parties are concerned. According to him, there was a partial dissolution of the firm and defendants Nos. 2 to 6 has as a result thereof quitted the partnership and they were merely impleaded as proper parties and not a necessary parties.