NATHSAHI Vs. IMAM REZA

JUDGEMENT

(1.) This is an application under Chap. VI, Rule 6, for an order that the Memorandum of Appeal be amended by substituting for respondent No. 31 who is dead, her son who is her legal representative. The decree of the lower appellate Court was pronounced on the 14th of September, 1922, and the appeal was presented to this Court on the 13th December, 1922. We are now informed that respondent No. 31, died on the 1st November, 1922, that is to say, before the appeal was actually presented to this Court. The peon on the 23rd March, 1923, reported that respondent No. 31 was dead and the present application was presented to this Court on the 10th May, 1923. Respondent No. 31 is a pardanashin lady and it is well within probability that the appellant did not know of her death prior to the time when the peon went to the village to serve the processes on her.

(2.) The only other question is whether the appellant has complied with the provisions of Chap. VI, Rule 6 which requires that he should file an affidavit showing that the application has been made with all reasonable diligence after the fact of the death of such person first came to the knowledge of the applicant or of the applicant's agent. It is quite true that the report of the peon is dated the 23rd March, 1923, but the appellant did not come to know of it until very much later. In the circumstances of the case, we think that the application should be allowed and we order accordingly.