(1.) This is an appeal by the plaintiffs from an order of the Court below actually dismissing the suit, which has been treated as an order refusing to set aside an abatement against the contesting defendants only, from which an appeal lies under Order 43, Rule 1(k).
(2.) While a mortgage suit was pending against the numerous defendants Mahadeo, defendant 4, died on 3 July 1922, but an application to bring his son and heir, Chandar Deo, was filed on 30 January 1923, without informing the Court of the lapse of time which had intervened. Notice was issued to the proposed heir and there was substituted service by means of affixation of notice and publication in a newspaper. On 27 March 1924 a preliminary decree in the mortgage suit was passed ex parte. After this decree two of the other defendants, namely, Gobardhan Das, defendant 2 and Shyam Sunder Das, defendant 3, also died on 9 February 1926, and 23 March 1926, respectively. An application was filed by Chandar Deo, the heir of Mahadeo Panda, for setting aside the ex parte decree on the ground that he had no information of the suit. Another application appears to have been filed by the heirs of Gobardhan Das and Shyam Sunder Das, alleging that they also had no information about the suit. The application however is not to be found on this record, but both these applications were disposed of by a joint order of the Court dated 13 January 1928 on a finding that the applicants had no information of the suit. The ex parte decree was accordingly set aside as against the applicants and the suit was restored so far as they were concerned.
(3.) The position, strictly speaking, was that Mahadeo Pande had died and an application for substitution of the name of his heir had been made though beyond time; and that Gobardhan Das and Shyam Sunder Das died after the preliminary decree and no formal application to bring the heirs upon the record was made up to that time. On 9 February 1928, the heirs of Gobardhan Das and Shyam Sunder, by their application pointed out that their names had not been formally brought on the record and that the suit could not continue as against them. The plaintiffs promptly applied on the same date to bring their names on the record as the legal representatives of the two deceased defendants. The Court made an order accordingly and allowed time to the heirs of the deceased defendants to file a written statement. These defendants filed a written statement on 13 February 1928, in which they took the plea that the suit had in fact abated as against them because no application for substitution of names had been filed within the time allowed by law. The learned Subordinate Judge acceded to this contention, and holding that the suit had abated dismissed the suit as against these contesting defendants, that is to say, against the heirs of Mahadeo Pande, Gobardhan Das and Shyam Sunder Das. It is from this order that the principal appeal has been preferred.