PRITAM SINGH Vs. GURMUKH SINGH AND OTHERS

JUDGEMENT

(1.) THE trial Court refused to set aside the abatement by order dated 3.10.1987. Against the aforesaid order the legal representatives went up in appeal. The learned Additional District Judge noticed decisions of this Court and the Supreme Court wherein abatement was set aside even when there was longer delay, and allowed the appeal and after setting aside the abatement, ordered the impleading of the legal representatives as plaintiffs and remitted the case to the trial Court for proceedings further in accordance with law. This is revision against the aforesaid order of the Additional District Judge.

(2.) IT is urged that appeal before the district court did not lie and the remedy, if any, of the legal representatives was to approach this Court in revision. Order 43, Rule 1(k) of the Code of Civil Procedure, provides for an appeal against the order refusing to set aside the abatement or dismissal of the suit. The dead man can never file an appeal, nor can file an application for setting aside the abatement. The application can be filed only by the legal representatives if the deceased is the sole plaintiff or the appellant but if there are more than one plaintiffs or appellants, then the application can be filed by the remaining plaintiffs or appellants. The provision under Order 43, Rule 1(k) of the Code is wholesome Whosoever files an application for setting aside the abatement and if that application is dismissed, i.e., the abatement is not set aside, he clearly has a right of appeal.

(3.) THEREFORE , viewing the case from any angle, the abatement is set aside and the order of the Additional District Judge is confirmed and the case is remitted to the trial Court for bringing on record the legal representatives of the deceased plaintiff and to proceed further with the suit in accordance with law.