NANDU Vs. BHUWANOO

JUDGEMENT

(1.) THIS appeal was filed by Nandoo on 19th September 1927 and was fixed for hearing parties on 14th December 1928. The appellant Nandoo died on 8th August 1928, leaving behind sons and grandsons of predeceased sons but no application on their behalf was made within 90 days the period prescribed by law, for bringing the legal representatives of the deceased appellant on record, and accordingly the appeal abated so far as the deceased appellant was concerned. The legal representatives of a deceased appellant can apply within 60 days from the date of abatement to set aside the dismissal and if it is proved that they were prevented by any sufficient cause from continuing the appeal, the Court shall set aside the abatement upon such terms as to costs or otherwise as it thinks fit. In this case, three out of thirteen legal representatives filed an application on 12th December 1928, stating: that they were not aware that an application for substitution of the legal representatives of the deceased appellant had to be made within 3 months of his death:

(2.) THE learned pleader for the applicants argued that the mistake was bona fide and was not due to wilful negligence and cited Hero Chunder v. Surnamoyi [1886] 13 Cal. 266. The learned pleader for the respondent cited Sitaram Paraji v. Nimba Harishet [1888] 12 Bom. 320 and Beahi v. Ahsanullah Khan [1890] 12 All. 461, and argued that ignorance of law cannot be considered sufficient cause for extending time. In the case reported in Huro Chunder Roy v. Surnamoyi [1886] 13 Cal. 266, the appeal was filed late, because the appellant was under the impression that the appeal would lie to the High Court, while, as a matter of fact, on account of the reduction of the claim from 18,000 to 5,000 by the Court of first instance, the appeal could not lie to the High Court but to the Court of District Judge. There was thus a mistake of fact as well as a mistake of law in that case. The case is not on all fours with the present case and therefore is not applicable. West and Birdwood, JJ., held in Sitaram Paraji v. Nimba Valad Harishet (2). that:

(3.) THE statutes of limitation are intended to check the tendency which litigants have of dilatoriness and such statutes must have strict operation. Ignorance of law cannot be sufficient excuse for not filing the application in time and, therefore, the abatement cannot be set aside. The application is rejected. I allow Rs.10 as costs which will be paid to the. respondent by the applicants.