SHABBAR HUSAIN Vs. ABBAS ALI

JUDGEMENT

(1.) The appellant in this case Syed Shabbar Hussain was the plaintiff in the Court below in a suit brought to pre-empt a sale which was carried out by means of a document executed on 20 August 1920. The first party of defendants to the suit consisted of eight persons who are the purchasers under the deed just mentioned. The defendants second party, consisting of two persons, were the vendors. The sale was a sale to eight persons in consideration of a sum of Rs. 14,999.

(2.) The plaintiff's suit failed in the Court below on the ground that the existence of a custom of pre-emption had not been proved. The plaintiff then appealed to this Court and impleaded the eight vendees and the two vendors as respondents. Since the filing of the appeal one of the vendees has died and admittedly no application has been made within time to make his legal representatives parties to the appeal. The necessary result of this default on the part of the plaintiff- appellant is that the appeal has abated as against the deceased respondent in accordance with the provisions of Order 22, Rule 4(3). Under that sub-rule it is declared that where within the time limited by law no application is made under Sub-rule (1) the suit shall abate as against the deceased defendant. The same rule is applicable in the case of appeals.

(3.) A preliminary objection is now raised on behalf of the remaining respondents- vendees to the effect that the appeal has abated not only as against the deceased respondent but in its entirety, and we are of opinion that this plea must prevail.