BABU GOPAL LAL Vs. KERANI GOPE

JUDGEMENT

(1.) This application arises out of an appeal preferred by Babu Gopal Lal, the plaintiff, against Kerani Gope and others. One of the respondents was Babu Ugra Mohan Thakur, who died on the 29th January 1914. On the 28th August 1914, the plaintiff applied that Mr. F.A. Savi, Babu Hem Chandra Mitra and Babu Suruj Mohan Thakur, a minor under the guardianship of his mother, Srimuty Sundari Debi Thakurani, should be substituted on the record as the legal representatives of the said Ugra Mohan Thakur, He obtained a Rule from this Court calling upon the opposite party; to show cause, why the substitution prayed for should not be made. Subsequently the minor s; name was expunged from the Rule at the risk of the petitioner.

(2.) The application of the 28th August 1914 was clearly out of time, and it has been argued on behalf of the opposite party that this Rule must, therefore, be discharged. We think, however, that the application is in substance an application for an order to set aside the abatement of the appeal, as against Ugra Mohan Thakur s representatives, which took place ipso facto six months after Ugra Mohan Thakur died. To succeed the appellant is bound to show that he was prevented by sufficient cause from continuing ,the suit, which clearly means that he was prevented by sufficient cause from taking steps, in time to avoid the abatement.

(3.) It has been said that we have discretion in the matter; but, in my opinion, we have no discretion at all. If sufficient cause is proved the appellant is entitled as a matter of right to have the abatement set aside; if it is not proved, the respondent is equally entitled to have the application refused.