BADRI NATH Vs. RAJA RAM

JUDGEMENT

(1.) This appeal is by two of the plaintiffs in the original suit. The history of the case is this. One Ram Harakh Pande obtained a preliminary decree against certain defendants, including the plaintiffs of the suit out of which this appeal has arisen. This decree was made oh 24 January 1924. Ram Harakh died some time in November of that year. On 3 February 1926, Ram Harakh's four sons make an application, to the Court which had passed the preliminary decree for making the preliminary decree final. Notices were issued to the, defendants and nobody appeared to contest the application. A final decree was passed on 24 April 1926. On 26tb April 1928, the plaintiffs instituted the suit to obtain a declaration that the final decree passed againat them was null and void. The defence was various and the principal defence was that the suit was barred by res judicata. We may point out here that one of the grounds taken in the plaint was that the final decree had been obtained by fraud on Court and the defendants. As to this they replied that there was no fraud.

(2.) The Court below dismissed the suit and hence this appeal by two only out of the five plaintiffs. We have to consider two points: first whether there was any fraud in obtaining the final decree and secondly, whether the final decree was passed without jurisdiction, and therefore is null and void.

(3.) On the first point the only evidence on the record is the statement of Sadhu Saran, one of the plaintiff-appellants to the effect that he received no notice alleged to have been issued before the preparation of the final decree. Supposing that Sadhu Saran did not receive any notice it does not follow that there was any fraud perpetrated by the decree-holders, and therefore the issue must be decided against the appellants. On the second point the argument is that the decree that was passed on 24 April 1926 was a nullity inasmuch as the Court had no jurisdiction to entertain the application for making the final decree without setting aside the abatement which had automatically taken place on the failure of the sons of Ram Harakh to obtain a substitution of names within 90 days of the death of their father. We are of opinion that this argument is not at all sound. The nature of an abatement is not a final disposal of the case either by dismissal or by decreeing it. The word "abatement" literally means lessening or shortening and is now very little used except in legal phraseology. When a Court is unable to proceed with a case pending before it for the reason that the proper parties are not before it, it is said that the case has abated. When an application is made to bring the necessary parties before the Court, the Court brings the proper parties before it and proceeds with the hearing. An application for setting aside an abatement may be made long after the case has actually abated. A cause may be shown by the party asking for the setting aside of the abatement as to why the application was not made earlier; Section 5, Lim. Act, applies to such an application. If on the abatement of a Suit, the Court ceases to have jurisdiction, how is it possible for it to entertain an application for the setting aside of the abatement made long after the three months period ordinarily allowed for setting aside the abatement has elapsed? We are therefore of opinion that the Court does not cease to have jurisdiction in the matter in which an abatement takes place. In this view we are not prepared to accept the dictum of Coutts, J., of the Patna High Court in Bibi Khozaima V/s. Official Liquidator of Kayesha Trading and Banking Corporation Ltd. A.I.R. 1923 Pat. 417, where the learned Judge made the following remark: The abatement must however be set aside before the substitution can be made and in making the substitution without setting asid9 the abatement, the Court certainly acted without jurisdiction.