DEVJI NARAYANJI Vs. RATANSI HIRJI BHOJRAJ

JUDGEMENT

(1.) This is an appeal against an order of the District Judge of Manbhum, declaring that an appeal preferred by the plaintiff has abated. The suit was filed by the appellant at Dhanbad under the provisions of Order XXI, Rule 63, Civil Procedure Code, against three brothers residing in Bombay, in which locality the appellant also resides. Before the trial began, the Court was informed that the eldest of the three brothers Keshavji had died in the year 1924 and he was, therefore, struck out from the suit. The trial Court dismissed the suit on its merits as against the two surviving brothers, and an appeal was preferred to the District Judge.

(2.) On February 12, 1936, the appellant informed the Court that Nanji, the younger of the two surviving brothers, had died on November 16, 1935, and applied for the substitution of his widow, whose name was unknown to him, as his heir. On that day the Court ordered that the widow should be substituted. On March 27, 1936, the surviving brother, Ratansi, filed a petition to the effect that he was joint with Nanji that the widow was not the heir, and that the real heirs were six surviving members of the joint family namely himself his two minor sons the two minor sons of the deceased and an adult nephew of the deceased. He claimed therefore that the appeal had abated for want of substitution, the period of ninety days having expired. On April 8, 1936 the appellant filed an application for setting aside the abatement after substituting the persons named in the petition filed by Ratansi. The District Judge rejected this application on the ground that the appellant had shown no sufficient cause for failing to substitute the legal heir within the statutory period. He held that in the circumstances the appeal had abated as a whole and not merely against the heirs of the deceased respondent.

(3.) Mr. A. K. Ray for the appellant did not dispute that the appeal had abated through failure to substitute the legal heirs within the period of ninety days but he contended that this was a proper case for setting the abatement aside. It is true that it does not appear that the appellant had any motive for applying to substitute a wrong person but it has not been explained either before the District Judge or in this Court what reason he had for doing so.