JAINARAYAN OJHA Vs. HIRA OJHA

JUDGEMENT

(1.) It was urged by Mr. S.N. Ray during the course of the argument that this case was a case which necessitated a reference to a Full Bench having regard to certain decisions which have been arrived at by this Court from time to time which, according to Mr. Ray, deal with the point which comes up for consideration in this appeal. But in my judgment the necessity for that course does not arise for the reasons which will presently appear and which mainly are that the cases which have been relied upon by Mr. Ray can certainly be distinguished so far as their facts are concerned from the facts which present themselves in this case. So far as this case is concerned there were two widows who were defendants amongst other persons in an action. The action resulted in a decision which was partly in the defendants favour and to that extent there was a decree in favour of the defendants.

(2.) There was an appeal and during the pendency of the appeal one of the widows died. I should have stated that these two ladies were the widows of one Bhiki Ojha. The matter came before the learned District Judge on 16 May 1931 and the substance of his order was that having regard to the fact that one of the widows had died and her legal representatives had not been brought on to the record, the whole appeal abated. I might say at this stage that if in fact and in law the appeal had abated there would have been no necessity for the order made by the learned Judge, but that perhaps is immaterial. On 11 July of the same year the appellant before us filed a petition praying that in the circumstances the order for the abatement of the entire appeal may be set aside.

(3.) As a result of that petition the learned District Judge on 22 July, 1931 made this order which it is perhaps necessary to state in extenso: No sufficient cause is shown why the application to bring the legal representatives of the deceased was not made within the prescribed time. No such cause is even suggested, The application is therefore dismissed. The first contention of Mr. Ray, who appears on behalf of the respondents as I understand his argument, is that the procedure adopted by the appellant was entirely out of order and as a result the appeal was barred by limitation. Mr. Ray's contention is that the petition of 11 July 1931 was nothing more in substance than an application to review the judgment or order made by the District Judge on 16 May 1931. It is not seriously denied by Mr. Ray that if the circumstances allowed, and in fact the petition of 11 July 1931 was an application to set aside the abatement, then there could be no objection to the procedure which the appellant had adopted, and his preliminary point he admits under those circumstances would have to be overruled.