BABU RAM Vs. BANKE BEHARI LAL

JUDGEMENT

(1.) The following facts may be stated in order to make the judgment intelligible.

(2.) The appellant obtained a decree for sale which was affirmed on appeal on the 29 of November 1917. When he made an application for a final decree about three years after the passing of the appellate decree, it was discovered that two of the defendants in the suit had died more than 90 days before the making of the application. The Court of first instance declared that the suit had abated. The appellant, thereupon, filed an application to have the abatement set aside. The respondents were heard and an order was made setting aside the abatement. Then followed, in due course, a final decree for sale. Against that final decree for sale, the respondents appealed and the sole ground that they took for challenging the decree was that the Court of first instance was not justified in setting aside the abatement.

(3.) The learned District Judge was of opinion that the Court of first instance should not have set aside the abatement and, decreeing the appeal, set aside the order making the decree final.