SHEO CHAND MISRA Vs. SITA RAM MISRA

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit for redemption of a mortgage. The mortgage was in favour of two persons Lachhman Misser and Sita Ram Misser. Before the institution of the suit Lachhman Misser had died leaving as his legal representative one Raj Ballaw Misser who was arrayed as Defendant No. 2 and Sita Ram Misser was arrayed as Defendant No. 1.

(2.) The suit was decreed by the trial Court but the decree of the trial Court has been reversed by the lower appellate Court and the suit has been dismissed. During the pendency of the appeal in this Court Sita Ram Misser died, and no step was taken in this Court, within the statutory period, to bring on the record his heirs and legal representatives. It appears from the affidavit filed on behalf of the defendant-respondent that Sita Ram Misser died so back as in the month of May 1925. An affidavit on behalf of the plaintiff-appellant has been filed to-day, and in it the allegation is that Sita Ram Misser was living at a far off place from the residence of the plaintiff-appellant, and that the plaintiff-appellant for the first time came to know of the fact of his death when the contents of the affidavit filed on behalf of the respondents were communicated, to him by his learned Counsel.

(3.) Be that as it may, no step having been taken to bring upon the record the legal representatives of Sita Ram Misser within the period allowed by law, the appeal as against him automatically abated, vide Churya V/s. Baneshwar . The only question that remains is whether or not the appeal has abated as a whole i.e., even as against Raj Ballaw. In my opinion the failure of the plaintiff-appellant to substitute the legal representatives of Sita Ram within the period allowed by law has entailed the abatement of the entire appeal.