DEBINATH Vs. BISSESAR DAS

JUDGEMENT

(1.) MOHIUDDIN , A.J.C. 1. The appellant Debinath is a minor son of Harnath against whom and Mst. Gajma Bai a preliminary decree for foreclosure was passed on 15th September 1922. Applications were filed on 11th April 1923 to make the preliminary decree absolute and also to bring the names of the legal representatives of Harnath on record as it was stated in the application for substitution of name that Harnath died 3 months ago. The Court passed an order on 21st July 1923 that the name of Debinath be brought on record in place of Harnath and appointed Ganpatlal guardian ad litem of the minor Debinath. The preliminary decree was made absolute on 8th November 1921. An application was made on 14th August 1926 on behalf of the minor through his mother Yeshwanti Bai that the name of the minor should not be, substituted in place of his deceased father Harnath because Harnath died on 9th November 1922 and the application for substitution of names was not made within the period of limitation prescribed for it, that is, within 90 days and therefore the suit had abated. This application was rejected on 11th December 1926 by Subordinate Judge, Second Class, Raipur. An appeal was filed against the order mentioned above, in the Court of the District Judge, Raipur, who dismissed the appeal on 17th June 1927.

(2.) THE only point which was raised in this Court was that the suit having abated on 9th February 1923, all proceedings in the suit after that date were in fructuous and were not binding on the minor. This argument is based on the fact that Harnath died on 9th November 1922 and the period of limitation for filing an application Under Article 177, Lim. Act was 90 days from the date of the death of the deceased defendant. In the proceedings which took place after the filing of the application dated 11th April 1923 the minor was properly represented by a guardian who was related to him and who was appointed by the Court. This point was not raised at that time and therefore cannot be raised by another guardian of the minor in a later stage of the same proceedings. The order was passed on 21st July 1923 that the name of the minor be brought on record in place of his deceased father and that order cannot now be challenged by means of an application which was fried after 3 years. Formerly the period of limitation for bringing the legal representatives of a deceased defendant was six months and it was explicitly reduced to 90 days by the Amenaing and Repealing Act of 1923. In 1923 there was a conflict of opinion regarding the period of limitation prescribed under Article 177 and this was set at rest by Act 11 of 1923. On the date the application was made the period of limitation Under Article 177, Lim. Act was considered to be 6 months and not 90 days. In any view of the case it cannot now be said that the application was barred by time when it was made and the suit had abated.

(3.) THE appeal therefore fails and is dismissed with costs.