BADRI PRASAD Vs. AMJID ALI

JUDGEMENT

(1.) This is a plaintiff's appeal and arises under the following circumstances:

(2.) The plaintiff Badri Prasad brought a suit for sale against one Mashuq Ali and certain other persons who were impleaded as subsequent transferees of the property mortgaged. A preliminary decree for sale was made in due course, and an application was made for the passing of a final decree on 1 May 1925. The application did not say when Mashuq Ali died, but it was directed against the heirs of Mashuq Ali and the subsequent transferees of the mortgaged property. When a controversy arose as to when Mashuq Ali died, it was found that he had died on some date in September 1924, that is to say, more than 150 days before the application for final decree was made. The plaintiff filed an affidavit to the effect that he was not aware of the death of Mashuq Ali, and that was the reason why he could not make an application for substitution of names on the record till 1 May 1925. The learned Subordinate Judge, who was seised of the application, passed the following order: The applicant's allegation that he was prevented from making Mashuq Ali's heirs parties in time by his ignorance of Mashuq Ali's death cannot be accepted... especially when Hardial who was prosecuting the case for the applicant impleaded them in his own Suit No. 2 of 1922. I therefore hold that the suit has abated as against Mashuq Ali's heirs and reject his application claiming the benefit of Section 5, Lim. Act.

(3.) A decree was passed against the subsequent transferees by the learned Judge on 28 August 1926, but the decretal amount was reduced to 4O% of the total amount due to the plaintiff, evidently on the ground that the properties in the hands of the transferees represented 40% of the value of the entire property mortgaged. The plaintiff filed an appeal before the learned District Judge and he raised the question as to the setting aside of the abatement. The learned Judge decided the point by the following sentence in his judgment: If the application of Badri Prasad be construed as an application under Order 22, Rule 9, to set aside an order of abatement, there is no allegation in the application of due diligence on the part of the applicant...The ignorance of the factum of the death of a party is no excuse.