HAFASJI IBRAHIM Vs. MANGALGIRJI MATHURAGIRJI

JUDGEMENT

(1.) On June 10, 1942, a decree was passed in favour of the opponent against the petitioners by the Court of the Extra Avalkarkun at Godhra under Section 19 of the Mamlatdars Courts Act ordering the petitioners to hand over possession of the suit lands to the opponent. On June 29, 1942, the petitioners applied to the Collector of Broach and Panchmahals, Godhra, in revision under Section 23 of the Mamlatdars Courts Act. On October 7, 1942, the original defendant died, and on January 5, 1943, the present petitioners applied to bring themselves on record as the heirs of the original defendant. On November 26, 1943, the Collector issued notice to the parties for the hearing of the revisional application. On December 15, 1943, the matter came before the Assistant Collector and he took the view that the revisional application had abated inasmuch as the petitioners had not applied to bring themselves on record within one month of the death of the original defendant, and on that ground he held that the application was barred and rejected it. It is from this order of the learned Assistant Collector that this revisional application has been preferred.

(2.) Now Section 18, Sub-clause (3), of the Mamlatdars Courts Act, provides that in case of the death of any party, while the suit is pending before him, if application is made within one month of such death, the Mamlatdar shall determine summarily who is the legal representative of the deceased party and shall enter on the record the name of such representative; and if no such application is made, the suit shall abate. Section 23, Sub-clause (I), provides that there shall be no appeal from any order passed by a Mamlatdar under the Mamlatdars Courts Act; but Sub-clause (2) of that section gives revisional powers to the Collector. There is no provision in the Act for bringing on record the heirs of the applicant in a revisional application in the event of the applicant dying nor is there any provision for the abatement of the revisional application on the death of the applicant. In Ganpatram Jebhai v. Ranchhod Haribhai (1892) I.L.R. 17 Bom.645 Mr. Justice Fulton and Mr. Justice Telang held that under the provisions of the then Mamlatdars Courts Act (III of 1876), if a party to a suit pending before the Mamlatdar's Court died the suit abated and the heirs of the deceased party could not intervene to proceed with the suit; and Mr. Justice Fulton took the view that as the object of the Act was to provide speedy and temporary relief it was thought inexpedient to make any provision for the continuance of a suit on the death of one of the parties. After this decision was given, the Mamlatdars Courts Act has been amended; and as I have just pointed out, Sub-clause (3) of Section 18 now provides for the continuance of the suit on the death of a party to the suit pending before the Mamlatdar's Court.

(3.) The question arises: what is to happen to a revisional application pending before a Collector when the applicant dies? Does it abate? Or is there any period of limitation prescribed for bringing the heirs on record in default of which it would abate? Or is there no limitation at all for the purpose of the heirs of the applicant continuing the revisional application? Mr. C.K. Shah for the opponent has relied on the Bombay decision to which I have just referred; but that dealt with proceedings in a suit pending before the Mamlatdar and it dealt with the law as it then existed and which has been radically amended now. In any case that was not a decision on the question which I have to determine in this application.