Dev Lal vs Faili

Dixit, J.—This is a petition by the plaintiff against the decision of the Additional District Judge confirming the order of the civil Judge Second Class Antari rejecting an application presented by the plaintiff to bring the legal representative for the deceased defendant Patiram on record as barred by time and refusing to set aside the abatement of the suit.

It is not disputed that the defendant Patiram died on 0-12-49 and the application which was presented by the applicant on 22-0-50 to bring the legal representative of Patiram on record, was barred by time under Art. 177 Limitation Act. Learned counsel for the applicant contends that the application which was presented by the plaintiff on 22-3-50 should have been considered as an application to set aside the abatement.

In my opinion, the decision of the Additional District Judge is right. It is clear from the provisions of Rules 4 and 9 of Order 22 that the proceedings to bring the legal representative on record are distinct and separate from the proceedings to set aside the abatement of the suit. On the death of a defendant if no application to bring his legal representative on record is made within the prescribed time, the suit abates automatically as against him. An application which is essentially one to bring the legal representative on record, cannot be construed as one for setting aside the abatement simply because it was made after the expiry of the period of limitation. The question whether an application for substitution, can be treated as an application for setting aside an abatement must be determined with reference to the facts stated in the petition for substitution. It is not the law that an application to bring on record the legal representative of the deceased party, if filed after the expiry of the period of Imitation, must always be deemed to be an application to set aside the abatement I do not, therefore, find myself in agreement with the decision of the Lahore High Court reported in AIR 1928 746 (Lahore) , that an application made after the expiry of the time limited by law to bring on record the legal representative should be treated as an application to set aside an abatement under O. 22, R. 9. As I have said before the question must be decided with reference to facts stated in the petition. In the present case, the applicant did not state in his petition dated 22-3-50 the date of the death of the defendant and he simply prayed for substitution of the heirs of the deceased defendant without stating the fact that the suit had abated or that the application for substitution was made beyond time or that on account of any fact the petitioner was entitled to any extension of the period of limitation for making the application. The petition cannot, therefore, be taken to have been a proper application at all under O. 22, R. 9 for setting aside the abatement of the suit. I am fortified in this view by the decision of the Calcutta High Court in Janki v. Nirod, 57 Cal 148. This decision, in my opinion, correctly states the circumstances in which an application made to bring the legal representative of, the deceased defendant after the period of limitation can be treated as an application to set aside the abatement. I prefer to follow the Calcutta decision.

For the above reasons this petition is rejected.