RAJU MUDALI ALIAS VINAYAKA MUDALIAR Vs. CHINNARAJU NAIDU

JUDGEMENT

(1.) This is an appeal filed under Order 43, Rule 1, Clause (k) of the Code of Civil Procedure against an order of the learned District Judge of North Arcot refusing to set aside the abatement of A.S. No. 214 of 1936. The appellant is the legal representative of the appellant who was on record in A.S. No. 214 of 1936. He applied to be impleaded and to be allowed to continue the appeal at a time when more than 90 days had elapsed since the death of his predecessor-in-interest. The reasons for his application were that he was a sepoy undergoing service at Jubbulpore, that he attempted to obtain leave from his Commanding Officer for the purpose of coming to Vellore and attending to this question of coming on record in the appeal, that the Commanding Officer refused to grant him leave and that when he eventually granted him leave on receipt of a letter from the Village Munsif, 90 days had expired. The learned District Judge refused to allow the petition on the ground that it was not necessary for the appellant to have obtained the attestation of his Commanding Officer in Jubbulpore to his affidavit and that he could easily have attended to this matter in the ordinary course of the post. There is no other material available, no affidavit from the Commanding Officer himself which in the circumstances of the case could hardly be expected, nor any affidavit from the Advocate who represented the appellant or the appellant's predecessor- in-interest.

(2.) The learned Advocate for the respondents takes the preliminary objection before me that no appeal lies under Order 43, Rule 1(k) and in support of that position cites the case reported in Akkas Mia V/s. Abdul Aziz Bepari . That authority certainly supports his view, but on the other hand there are cases in which the Patna High Court has interpreted the clause in Order 43 in a different way. It seems to me quite clear on an examination of both Order 22 and Order 43 that I should follow the view of the Patna High Court. Order 22, Rule 9 in terms relates only to a suit. It begins: Where a suit abates,...no fresh suit shall be brought on the same cause of action.

(3.) But Rule 11 of Order 22 runs as follows: In the application of this order to appeals, so far as may be, the word plaintiff shall be held to include an appellant,...and the word suit an appeal. And there is no dispute before me that an order that an appeal has abated can be set aside under Order 22, Rule 9 as interpreted by Rule 11. Order 43, Rule 1(k) reads as follows: An appeal shall lie from an order under Rule 9 of Order 22 refusing to set aside the abatement or dismissal of a suit.