GOHUR BEPARI Vs. RAM KRISHNA SAHA

JUDGEMENT

(1.) One Radha Madhab Saha instituted a title suit No. 754 of 1920, against Gohur Ali Bepari and others. The suit was dismissed by the Munsif on the 30 August 1920. There was an appeal to the District Judge who allowed it on the 29 March 1922. Some of the defendants preferred a second appeal to this Court making the plaintiff and the other defendants respondents therein. During the pendency of the appeal Radha Madhab Saha, the plaintiff, died. The appellants in this appeal obtained a rule to show cause why the abatement of this appeal in consequence of the death of the said Radha Madhah Saha should not be set aside and his heirs substituted in his place. The rule was discharged on the 3 April 1925. The appeal was thereafter put up for hearing and on the 21 May 1925 the following order was passed: The sole respondent having died and no substitution having bean made in his place, the appeal abates and is dismissed without costs as the respondent has not appeared.

(2.) A decree in similar terms was then drawn up and by it the appeal was disposed of.

(3.) The question that arises in the appeal now before us is whether the period of limitation under Art. 182 Schedule 1 Limitation Act runs from the 21 May 1925 or from the 29 March 1922. The Courts below have held that it would run from the former date. The judgment-debtor Gohur Ali Bapari has preferred this appeal and his contention is that it would run from the latter date. The main argument advanced on behalf of the appellant is to the effect that an order declaring that the appeal has abated is not a decree or order as contemplated by Clause 2, Art. 182, Schedule 1, Limitation Act, and reliance has been placed in support of this argument upon a number of decisions which will be presently noticed and chief amongst which are the decisions of the Judicial Committee in the cases of Batuk Nath V/s. Munni Dei A.I.R. 1914 P.C. 65 and Abdul Majid V/s. Jawahir Lal A.I.R. 1914 P.C. 66.