Arjun and Others vs Balwant

Dixit, J.—The material facts of this revision petition are that in a suit filed by one Manik. Arjun, Makhtul and Parmal against Balwant and others, the plain till Manik died on 20-1-1950. On 10-2-1950 Jiwanlal and Hargovind claiming themselves as sons of Manik applied for the substitution of their names on record in place of Manik. The Defendants took the objection that Jiwanlal and Hargovind were not the legal representatives of Manik. Thereupon the Court directed Jiwanlal and Hargovind to lead evidence to support their claim. They produced no evidence and the application for the substitution of their names was rejected. The other Plaintiffs Arjun, Makhtul and Parmal then applied to the Court that as the right to sue survived to them, the suit be proceeded with. The trial Court rejected this plea of Arjun, Makhtul and Parmal and held on 10-9-1951 that on the death of Manik, the right to sue did not survive to the other Plaintiffs and that as the application presented by Jiwanlal and Hargovind for bringing their names on record as the legal representatives of Manik was rejected on 5-5-1951 as they had failed to prove that they were the legal representatives, the Plaintiff''s suit abated.

Thereafter on 5-10-1951, the present applicants filed a petition under Order 22 Rule 9 for setting aside the abatement. The trial Court rejected the application on the ground that it having been filed more than sixty days after the abatement of the suit on 20-4-1950, was barred By time. Arjun, Makhtul, Parmal, Jiwanlal and Hargovind then appealed to the Court of District Judge, Morena against the order of the original Court. The learned District Judge upheld the order of the Civil Judge Second Class, Sabalgarh. The Plaintiffs Arjun, Makhtul, Parmal and the sons of Manik, namely, Jiwanlal and Hargovind have now presented this revision petition.

Mr. Agarwal, learned Counsel appearing on behalf of the applicants, urged that the application presented on 5-10-1951 for setting aside the abatement was within time as the Plaintiffs'' suit abated on 10-9-1951 when the Court passed an order that on Manik''s death the right to sue did not survive to the remaining Plaintiffs and, therefore, the suit had abated. There is no force in this contention. It is clear from the wordings of Order 22, Rules 3 and 4 that a suit abates automatically, if no application to bring on the record the legal representatives of the deceased person is made within the time prescribed by law, and that no declaration to this effect is necessary. I do not think any authority is now needed to support the well settled principle that in order to work out abatement of a suit or appeal it is not necessary for the Court to pass any order.

In the present case Manik died on 20-1-1950. When, therefore, the Court rejected the application of Jiwanlal and Hargovind on the ground that they had not been proved to be the legal representatives of Manik and when thereafter no legal representative of Manik was brought on record within ninety days of the death of Manik, the suit, clearly abated on 20-4-1950. An application under Order 22, Rule 9 to set aside an abatement has to be tiled within sixty days from the date of the abatement which in the present case was 20-4-1950. The application presented on 5-10-1951 was, therefore, clearly barred by time.

In fact in the present case Order 22, Rule 9 has its applicability whatsoever. That rule applies only to those cases where the abatement takes place because no application to bring on record the legal representative was made within the prescribed time. This is plain from the direction in Order 22, Rule 9(2) that the Court shall set aside the abatement or dismissal if it is proved that Plaintiff or the person claiming to be the (sic) representative of a deceased Plaintiff was prevent by any sufficient cause from continuing the (sic). The rule thus contemplates an application person who had never applied before to be (sic) a legal representative and not one by a person who had applied within time and whose application was rejected. The rule does not apply those cases where the Court declares that it suit has abated owing to the cause of action, (sic) surviving to the remaining Plaintiffs.

Where the abatement is due to the Court deciding that the right to sue does not survive, there a formal adjudication which conclusively mines the rights of the parties with regard all or any of the matters in controversy in the suit and the order of the Court falls within the definition of a decree. In such a case it is opposite to the party to appeal against the decision of the Court holding that the suit has abated owing the cause of action not surviving. It is not opposite to the party to apply for setting aside the abatement. This view is fortified by the decisions - Subramania Iyer v. Venkataramier AIR Mad 1068 (A); - ''General Trading Co. v. Singh'' AIR 1925 Lah 208 (B) and - ''Mst. Lax(sic) v. Ganpat'' AIR 1921 Nag 23 (C).

To the same effect is the decision in - (sic) Brij Jivan Lal and Another Vs. Shiam Lal and Others, , a distinction has been drawn between those of abatement where it is due to the failure of heirs being brought on the record within period allowed by law or due to the Court decided that a particular applicant is not the legal representative and those cases where the abatement is due to the Court deciding that the right to suit does not survive, and it has been held that latter class of cases, there is a decree which appealable. In the present case the Court the suit as having abated owing to the cause action not surviving. The applicants did present any appeal to have that adjudication abatement set aside. Therefore, the present application under Order 22, Rule 9 for setting aside abatement is clearly incompetent.

For the above reasons I uphold the decision of learned District Judge and dismiss this revision petition, In the circumstances of the case there (sic) be no order as to costs of this application.