MAHENDRA SINGH Vs. SOHAN RAJ

JUDGEMENT

(1.) THIS appeal has come up before us for orders on the three applications under order 22 Rule 4. Order 22, Rule 9 C. P. C. and Section 5 of the Indian Limitation Act respectively in connection with determination of the question as to whe-ther the appeal has abated or not.

(2.) THE facts relevant for the determination of the points raised before us are as follows: Respondent Sohanraj died on 1st January 1972. His legal representatives were not brought on the record in time. An application was made on behalf of the appellant for implead-ing legal representatives of the deceased respondent Sohanraj on 24th October, 1972. This application was obviously not within the prescribed tune of limitation. The delay in filing application was sought to be explained on the ground that the appellant learnt about the death of the deceased sohanraj for the first time when he received a letter dated 3rd October, 1972 from his advocate Shri L. R. Mehta from Jodhpur wherein he informed that Sohanraj was reported to have died a year ago and enquired of the appellant the exact date of the death of the respondent Sohanraj along with names of his legal representatives. It was averred in this application that the appellant had been sick since long and was not in a position to move out and that the case was being looked after by his Kamdar Roodsingh who also died on 18th March, 1972. On receipt of the letter from his advocate, the appellant deputed one Babhutdan to proceed to Jodhpur for finding out the names of the legal representatives of the deceased Sohanraj. According to the appellant Babhutdan proceeded to Jodhpur on I4th October, 1972 and stayed there upto 22nd October. 1972 for the purpose of collecting the required information. Ultimately. Babhutdan collected the information and on its basis an application was moved on behalf of the appellant on 24th October, 1972 under Order 22 R, 4. C. P. . C. This application was accompanied by affidavits of the appellant himself and that of Babhutdan. Another application was made under Section 5 of the Limitation Act on 4th January, 1972 wherein it was prayed that the delay in filing the application be condoned. This application was also supported by affidavits of the appellant and Babhutdan. Yet, a third application was moved under Order 22 Rule 9 on the same day praying for setting aside the abatement on the ground that there was sufficient cause for not bringing the legal representatives on the record in time. This application too was supported by affidavit of Babhutdan. the power-air torney holder of the appellant. A contest was put on behalf of the legal represent tatives of the deceased respondent by a written reply wherein the fact as to the illness of the appellant was controverted. It was alleged that the appellant had knowledge of the death of the respondent Sohanraj at least on 22nd July. 1972 when an application was moved on behalf of the legal representatives of the deceased Sohanrai in the executing court for sub-stituting their names in place of the deceased Sohanrai. It was inter alia refer-red in the reply that the copy of this ap-plication was given to shri Bhomsingh Advocate who was appearing on behalf of the appellant in the execution proceedings. The say of the opposite party is that the knowledge of the advocate of the appellant will be deemed to be the knowledge to the appellant as to the death of the respondent Sohanraj and consequently there was no sufficient cause for setting aside the abatement.

(3.) THE point for determination is whether the appeal has abated and if so, whether the abatement should be set aside. Mr. Lekh Raj Mehta on behalf of the appellant made two-fold submissions in this regard. Firstly, he urged that the provisions of order 22 of the C. P. C. relating to abatement do not apply at all to special appeals and therefore the question of abatement of this appeal does not arise. His second submission was that if the provisions of Order 22 are held to be applicable to special appeals then there is sufficient cause for not bringing the legal representatives of the deceased Sohanraj on the record in time and therefore the abatement. If any, should be set aside.