A SRINIVASULU CHETTI Vs. PALAMKULA GURAVIAH

JUDGEMENT

(1.) The facts are these. Five persons brought a suit to establish their right to a site and obtained a decree. The defendant appealed. His appeal succeeded on 28 October, 1919 but before that date, on 2nd September, 1918 the 2nd plaintiff died. His name however, continued on the record and the appeal was disposed of without his legal representatives having been added. The other plaintiffs and his legal representatives, who were added as parties by the High Court, preferred a second appeal, on which the High Court passed the following Judgment: There being a question whether the 2nd plaintiff was not dead when the appeal was heard, both sides agree that the decree should be set aside and the appeal remanded for disposal according to law.

(2.) This judgment was delivered on 19 November, 1920. On 29 March, 1924 the defendant filed an application to set aside the abatement. This application was rejected by the subordinate Judge. A.A.Q. No. 419 is an appeal against his order. The appeal against the decree was then heard and the Subordinate Judge dismissed it, holding that the whole appeal had abated. Second appeal No. 742 is an appeal against his judgment.

(3.) It is argued that, as the High Court brought the legal representatives on to the record, they must be held to have been brought on to the record for all purposes and not for the limited purpose of enquiring into the question raised before the Court. We cannot accept this argument. It is obvious from the terms of the High Court's order that the defendant must have alleged that the 2nd plaintiff was still alive when the appeal was disposed of on 20 October, 1919 and we think that the legal representatives were brought on to the record for the limited purpose of a decision on that allegation. On the merits, the appellant has to show sufficient cause for his failure to apply before 29 March, 1924 to get the abatement set aside. His explanation is that he was advised that the bringing on to the record of the legal representatives by the High Court was sufficient for all purposes.