(1.) This is an appeal against an order refusing to set aside an abatement of an appeal. There were 24 defendants in the suit, all residents of the same village, and they were also the respondents in the lower Appellate Court. Respondent 21 died on 7 May 1937 after notices of the appeal were duly served. On 6 September 1937, respondent 16 filed a petition stating that the appeal abated as respondent 21 died mc than three months ago. On 13 September 1937, the appellant made an application for substitution of respondent 20 in the place of the deceased respondent. On the following day however respondent 18 intimated to the Court that the deceased respondent had left a son and two nephews -who were not on the record. The matter was put up on the next day when the Court recorded an order that the appeal abated. Thereafter, on 1 October 1937, the appellant made an application for setting aside the abatement. The appellant is the Maharaja of Dumraon.
(2.) The ground for setting aside the abatement was that the conduct of the appeal was in the hands of his law agent who lived at Arrah for the purpose and he came to know of the death of respondent 21 only when the petition was filed on 6th September 1937 by respondent 16. At the hearing the law agent gave evidence in support of the application. No evidence was adduced on behalf of the respondents. The learned District Judge has held that no sufficient case was made out for setting aside the abatement. He remarks that the deceased respondent being resident of a village where the appellant's patwari and tahsildar live, it was possible for him, if he was diligent, to keep himself informed of the death of respondent 21.
(3.) A preliminary objection is taken to the maintainability of the appeal. It is contended that Order 43, Rule 1(k) which provides for an appeal against an order refusing to set aside an abatement by its terms applies only to suits and not to appeals. However looking to the provisions of Order 22, Rule 11, it is clear that so far as abatement is concerned suit will be deemed to include an appeal. The matter is concluded by authorities of this Court. In Wajid Ali V/s. Fagoo Mandal A.I.R (1938) . Pat. 125 a similar objection was taken but it was overruled. Their Lordships with reference to the provisions of Order 22, Rule 9 and 11 held that an appeal lies against an order refusing to set aside an abatement of an appeal. On the same point there is also the case in Hari Saran Singh V/s. Saiyid Mohommad Eradat Hussain A.I.R (1925) . Pat. 162. These are Division Bench decisions of this Court and we have to follow them.