SESHAMMA Vs. YEERANKI PEDA VENKATA RAO

JUDGEMENT

(1.) This appeal is against the order of the Additional Subordinate Judge of Cocanada setting aside an abatement of a suit, the order appealed against being passed under Order 22, Rule 9. In ordinary circumstances no appeal lies against such an order, but in the circumstances of this case it is contended that the order appealed against was passed without jurisdiction and vitiated by material irregularity.

(2.) The plaintiff who is the respondent in this appeal, sued one M. Narayana Rao in the Court of the District Munsif of Peddapur on a mortgage and on 27-11-1918 obtained a preliminary decree. It since transpired that the judgment-debtor died on the morning of 27-11-1918 before the decree was passed. The plaintiff admits that, not long after the decree, he came to know of the fact of the death of the judgment-debtor, but not of the actual date of it and assumed that he had died after the decree and that therefore the decree was valid. He took no steps to bring on the legal representatives until 27-8-1920 when he filed E.A. No. 2411 of 1920 under Order 34, Rule 5 wherein, while setting out that the judgment-debtor bad died and entering his widow (the present appellant) as the defendant in the petition, he asked merely that a final decree be passed. The present appellant in here counter-petition pointed out that tin judgment-debtor had died before preliminary decree was passed, that no petition to bring on the legal representative on record had been put in time, tin t therefore the suit had abated, and that the date of limitation for bringing on the legal representatives had passed. Even after this allegation the plaintiff did nothing until 23-3-1921 when he put in E.A. No. 911 of 1921 in which he asked that the delay in bringing on the legal representatives be excused, and that a final decree be passed. In his affidavit to that petition, he persisted in saying that the defendant judgment-debtor died after the decree and that the allegation that he died before the decree was not true.

(3.) The District Munsif dismissed both the petitions. The Additional Subordinate Judge on appeal held that the application, E.A. No. 2411 of 1920, may be treated as one for setting aside the abatement of the suit and that the excuse for the delay in filing such an application is reasonable and he set aside the abatement of the suit and directed the District Munsif to take it on file and proceed with it.