V ACHUTHAN NAIR Vs. MANAVIKRAMAN ALIAS KUNHETTAN RAJA

JUDGEMENT

(1.) We do not think that, when the legal representatives for a deceased defendant or respondent are on record, an application to bring on the legal representatives within three months is necessary. It is enough if the plaintiff or appellant at some time or other before the hearing of the suit or appeal states the fact and gets it noted on the record. The decision in Shankar Bat V/s. Motilal (1924) ILR 49 B 118 on this matter is not necessary for the case. Anyhow we do not agree with it. The decision in Gurditta Mal V/s. Muhammad Khan (1925) 7 Lah. LJ 544 has been dissented from by the Lahore High Court itself in Gopal Das V/s. Mul Chand (1926) ILR 7 Lah 399. See also Maung Po V/s. Ma Shwe Ma (1924) ILR 2 R 445 and the decision of Jackson, J., in C. R. P. No. 527 of 1927 with which we agree.

(2.) The result is there was no abatement of the suit even as regards 1 defendant. When the District Munsif stated in his order, dated 8 August, 1925, that the abatement as regards the 1 defendant will stand but the suit will proceed against the rest, it was an ambiguous order. One is apt to construe it as an order that there is no abatement against defendants 2 to 25 which is the necessary legal result if they are the legal representatives of the 1 defendant and if the suit abated against 1 defendant. The District Munsif made this clear when he passed the order of the 23 October and this has been appealed against. There is then no substance in the argument that the order of the 8 August ought to have been appealed against and has become final.

(3.) We think the Subordinate Judge is right and dismiss the appeal with costs.