MITHAN LAL Vs. MAYA DEVI

JUDGEMENT

(1.) This is a judgment-debtor's appeal from an order of remand. Mt. Nando Kuer, the widow of Durga Prasad, brought a suit against Mante Lal, Gaya Prasad, Jamuna Prasad and Lachhmi Narain for her maintenance due to her under an agreement made with them and charged on certain property and obtained a preliminary decree from the Munsif of Jalesar. The appeal against this preliminary decree was confirmed on 21 October 1923.

(2.) There next followed some efforts on behalf of Mt. Nando Kuer to execute the decree but on 20 January 1926, it was held as we are informed, that there could be no execution till a final decree had been prepared under Order 34, Rule 5. On the same date, 20 January 1926, Mt Nandu Kuar made a gift of her rights secured by this preliminary decree to her daughters, one of whom was Mt. Maya Devi, the present respondent. On 29 January 1926, Mt. Nando Kuer died. No steps were thereupon taken by anybody to bring her legal representatives on the record. The litigation continued up to the High Court where on 5 May 1926 Mante Lal, who was there the appellant asked to be allowed to withdraw his appeal. Again nothing happened till 20 December 1926, when Mt. Maya Devi, on the strength of the gift to her and her sister of 20 January 1926, made an application to the execution Court. This application was described to us at the hearing as one containing two prayers. Firstly, for substitution of Mt, Maya Devi's name as legal representative of the deceased plaintiff decree-holder, Mt. Nando Kuer and secondly, for the preparation of a final decree. On examination, however, that application shows that it contained no prayer for substitution of her name as the legal representative of Mt. Nando Kuer. The application, as it stands, is simply one made by Mt. Maya Devi for the preparation of a final decree and was made on the basis of the assignment by gift to her of the preliminary decree, and the only excuse for suggesting that it could possibly be regarded as an application for substitution also is that it does contain the one word "waris" in direct conjunction with the word "malik." It was, however, in form and in effect really nothing but an application for the preparation of a final decree. On 19 February 1927, Mante Lal objected that the application was barred by limitation, relying upon Arts 176 and 171, Lim. Act and the Full Bench decision in the case of Churya V/s. Beneshwar . It was contended that the suit had abated and that no application having been made within sixty days to set aside the abatement, the whole application was barred by Arts. 176 and 171, Lim. Act as interpreted by the Full Bench case. Mante Lal further challenged the validity of the gift of 20 January 1926, and finally challenged the statement that Mt. Maya Devi was heir or one of the heirs of Mt. Nando Kuer. Mante Lal's objection on the ground of limitation were accepted by the trial Court and the application of Mt Maya Devi rejected. In appeal the District Judge overruled the objections of Mante Lal, holding that Mt. Maya Devi was not making any application in regard to the substitution of legal representatives at all, but was simply applying in her capacity as assignee and she, therefore, had three years within which to make the application. Being of this opinion, the District Judge remanded the case for disposal on the merits. The objector, or rather Mithan Lal, his son, Mante Lal having died, has come in appeal to this Court.

(3.) The learned District Judge has held that in this case no question of abatement arises at all as Mt. Maya devi did not make her application of 20 December 1926, as legal representative of Mt. Nando Kuer but as her assignee from Mt. Nando Kuer in her lifetime Holding this view the learned District Judge has brushed aside all the pleas of abatement, etc., saying: The pleas of limitation, of abatement and of release (sic-setting aside) of abatement are quite technical.