Mt. Bibi Khozaima vs The Official Liquidator of the Kayestha Trading and Banking Corporation Ltd.

Coutts, J.—This application arises out of an order by the Subordinate Judge of Chapra allowing an application for substitution. The case is a somewhat curious one. It appears that the Kayestha Trading and Banking Corporation brought a suit against one Abdul Jabber. On the 5th March, 1918, they obtained an exparte decree. They then made an application for execution against the heirs of Abdul Jabber who was then dead, but they were met with the objection that Abdul Jabber had died on the morning of the 5th March before the decree was passed. The executing Court allowed the objection, holding that the decree was null and void and incapable of execution. Against this decision the plaintiff appealed to the High Court. The appeal was dismissed and the order of the first Court was confirmed on the 15th July, 1921. On the 11th August, 1921, the plaintiff applied to the Subordinate Judge to substitute the legal heirs of Abdul Jabber in the original suit. This has been allowed and it is against this order that the present application has been made by Abdul Jabber''s heirs.

I am not quite clear as to the reasons of the learned Subordinate Judge for allowing substitution, but he refers to section 14 of the Limitation Act and says that the decree was obtained and executed against a dead person owing to a bona fide mistake, and that under these circumstances the plaintiff is entitled to an exclusion of the whole period during which he was proceeding against the dead man from the period of limitation in applying for substitution. He further says that as the decree against Abdul Jabber is null and void there is no decree in the case and the plaintiff is in the same position as if the decree had been set aside. The suit has, therefore, not abated and the plaintiff is entitled to succeed.

I will first deal with the last proposition of the learned Subordinate Judge. He is entirely wrong when he says that the suit has not abated and he has evidently not studied the provisions of Order XX on this point. Order XX, rule 4, provides that:

Where one or two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

and in sub-clause (3) it is provided that:

Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

The period of limitation is three months so that in the present case the decree being null and void the suit abated after the expiry of three months from the date of the death of the defendant.

We now come to Order XX, rule 9. This rule provides for setting aside an abatement, and under sub-clause (2) an abatement is to be set aside when it is proved that the plaintiff was prevented by sufficient cause from continuing the suit. The period of limitation under this sub-clause is sixty days under Article 177 of the Limitation Act, but under sub-clause (3) of Order XX, rule 9, section 5 of the Limitation Act is made applicable so that even after the expiry of sixty days the abatement might have been set aside if the plaintiff had satisfied the Court that he had sufficient cause for not making the application within the period of limitation. The abatement must, however, be set aside before the substitution can be made and in making the substitution without setting aside the abatement, the Court certainly acted without jurisdiction.

The learned Subordinate Judge has not considered the question of "sufficient cause" in this case and it is clear that there was no sufficient cause. It may be that when the plaintiff first applied to execute the decree against the heirs of Abdul Jabber he believed that the decree was good as against the heirs, but when the objection was allowed he should at once have applied for setting aside the abatement and for substitution. He chose, however, to appeal and even after the decision of the High Court against him he waited for nearly a month before making any application. Furthermore he made an application for substitution instead of for setting aside the abatement. In the circumstances it is difficult to see how the plaintiff could possibly be allowed any benefit from section 5. The order of the learned Subordinate Judge is manifestly wrong and without jurisdiction and should be set aside.

I would accordingly allow this application and set aside the order of the learned Subordinate Judge.

Das, J.

I agree.