N. Kunjithapatham Pillai vs Saraswathi Ammal and Others

Pandrang Row, J.—The only question raised in this appeal is whether the petition in the Court below was barred by limitation. The article

which is admittedly applicable is Article 182 of the Limitation Act. The question is whether the petition was presented within three years after the

date of the final order in E. P. No. 139 of 1930. That E. P. was allowed by the District Court on the 3rd August, 1932, and an appeal preferred

from it by the respondent Sivagamu Amma is said to have abated on the 23rd June, 1933, because Sivagamu Amma the appellant therein, died on

the 23rd March, 1933, and no application to bring her legal representative on record was made within 90 days from that date. An application was

made to set aside the abatement (C.M.P. No. 3812 of 1933) and that was dismissed on 17th November, 1933. There was however a formal

order made on the 17th September, 1935, by a Bench of this Court to the following effect : ""Appellant dead. Appeal abates."" If this order of 17th

September, 1935, can be said to be the final order in the appeal, it is admitted that there would be no bar of limitation. If, on the other hand, the

date from which the three years period of limitation is to be counted is taken as 23rd June, 1933, when the actual abatement took place or as 17th

November, 1933, when the application to set aside the abatement was dismissed, the bar of limitation would apply.

The main question argued before us on behalf of the appellant is that the order made on 17th September, 1935, is not a final order. The real

objection seems to be that because the order was unnecessary and was made at a time when one of the parties was dead and unrepresented, it

cannot be regarded as an order at all, and therefore not a final order. Some decisions have been quoted to us in support of the proposition that an

order in so many words declaring that a suit or appeal has. abated is not necessary under the law as it stands, but no authority has been quoted

which goes to the extreme length of declaring that when an order is actually made declaring that an appeal has abated, that order is to be treated as

if it had never been made. The exact point appears to us to have been decided in Gohur Bepari''s case 32 C.W.N. 387 and that decision has

received the approval of their Lordships of the Judicial Committee as will be seen from Husain Asghar Ali v. Ramditta Mal (1932) ILR 60 Cal.

662 (P.C.). Gohur Bepari''s case 32 C.W.N. 387 decided that an order stating that an appeal has abated comes within Clause 2 Article 182 of

the Limitation Act and time runs from the date of such order for the execution of the decree. This is a decision on the very point which we have to

decide and in view of the fact that it has received the approval of the Privy Council, we see no reason for not following that decision. It is perhaps

necessary for us to say that we concur entirely in the view which has been taken in that case. It follows from this that the plea of limitation was

rightly dismissed by the Court below.

This appeal therefore fails and is dismissed with costs.