SANTOOLAL Vs. CHAMPALAL

JUDGEMENT

(1.) THE appellant died as far back as 19th November 1931 about three months after the appeal was presented. Respondent 2 Santoolal is the son of the deceased appellant Pahlad and was a plaintiff with him in the suit and and an appellant with him in the first appeal in the Court of the Additional District Judge. He did not however join in the second appeal to this Court and was made a respondent. On 13th July 1932, i.e., some eight months after the death of his father, the appellant, he made an application that he should be brought on the record as an appellant and as the legal representative of his deceased father and that the order of abatment of the appeal should be set aside. Unfortunately this application was not considered either on the 9th of January 1933 or on the 19th of January 1934, when the appeal was fixed for hearing and was adjourned. It seems clear however that the appeal has abated and that the abatement cannot be set aside. The application, as already stated, was not made till eight months after the death of the appellant, and both the period of 90 days allowed by Order 22, Rule 4 and the period of 60 days allowed by Order 22, Rule 9 had elapsed before the presentation of the application by Santoolal. No sufficient reason for the delay has been assigned and the contention put forward by the learned Counsel for the applicant that because he was already on the record as a respondent the appeal would not abate, cannot be accepted. In this connexion I would refer to Gobind Rai v. Anar Kunwar AIR 1931 All 349. I therefore hold that the appeal has abated and that the abatement cannot be set aside. The appeal is accordingly dismissed.