DIRGHAYU PANDE Vs. SHRIMATI KISHORI KUER

JUDGEMENT

(1.) This is an application for substitution by Mahanth Ramdhan Puri who claims to be substituted after setting aside the order of abatement of the appeal in place of the sole appellant Dirghayu Pande in the following circumstances. Dirghayu Pande sued to recover possession of four annas of the property in suit, described in the plaint, before the Munsif, third Court, Gaya, from defendant 2 and his transferees, defendants 3 and 4. That property had been sold in a certificate sale for recovery of arrears of cess on 3 April 1934, by the Collector; and therefore the Secretary of State for India in Council was impleaded as defendant 1. During the pendency of the suit there was a compromise between defendant 4 and the plaintiff so that the suit of the plaintiff then remained for deciding the rights as to the remaining half share in the property in suit.

(2.) The suit was ultimately decreed ex parte against defendant 3 only and dismissed against the Secretary of State on 10 December 1936. Defendant 3 preferred an appeal to the District Judge of Gaya. That appeal was heard by the learned Subordinate Judge who allowed the appeal and dismissed the suit so far as it concerned defendants 2 and 3 with respect to the subject-matter of the appeal. That decision was given on 7 December 1937. During the pendency of the appeal in the Court below the petitioner before me, Ramdhan Puri, obtained a sale deed from the plaintiff on 4 January 1937. That sale deed has been produced before me and I am informed that by the terms thereof the petitioner undertook to finance and carry on the litigation both in the Court below and also in. the High Court, if, necessary. But the petitioner, notwithstanding the devolution of the interest pendente lite, did not avail himself of the provisions of Order 22, Civil P.C., and did not get, himself substituted or brought on the record of the appeal while it was pending in the Court below.

(3.) Against the decree of the learned Subordinate Judge dated 7 December 1937, allowing the appeal of the defendants, a second appeal was brought in this Court by the sole plaintiff; the memorandum of appeal was filed on 7 March 1938. The appeal was admitted by the Registrar on 4 May 1938 and after notice to the respondents it was placed in the ordinary course for hearing before the learned Single Judge of this Court who took up the case on 9 February 1939, when the learned advocate for the respondents informed the Court that the sole appellant had died. The learned advocate for the sole appellant then took time to ascertain the fact and date of death of his client and to make the necessary substitution. On 23 February 1939, it having been discovered that the sole appellant had died on 25 August 1938, and therefore the appeal had abated, an application was filed before this Court asking that the abatement may be set aside and that the petitioner may be substituted in place of the. deceased sole appellant.