Shivashanker Mahton and Others vs Kamakhya Narayan Singh

James, J.—This application arises out of proceedings for the ascertainment of mesne profits. The plaintiff obtained a decree for recovery of possession of a certain village with mesne profits up to the date of delivery of possession. The application for the ascertainment of mesne profits was made on 17th September; 1926, together with a number of similar applications; but the hearing of this application was delayed, pending the decision of an appeal in the High Court on the question of whether the applications were barred by limitation. The present application was revived in November 1929. In the following March the peon who was deputed to serve the processes on the defendants reported that one of them named Tarman Mahton was dead. On 28th July the defendants filed a petition, alleging that Tarman Mahton had died before the date of the decree.

Four months later, on 29th November the plaintiff applied to the court for time, to take steps for the substitution of the heirs of Tarman Mahton; and he was allowed time until 23rd December 1930. On that date a formal application was filed, which was allowed by the Subordinate Judge who found that the suit had abated, but that sufficient ground had been made out by the plaintiff for setting the abatement aside. He therefore directed that the sons of Tarman Mahton should be brought on the record in the place of the deceased defendant. The defendants appealed to this Court, but their appeal was dismissed on the ground that the order of the Subordinate Judge was not appealable; and they then applied for revision of his order.

Mr. Sarju Prosad on behalf of the petitioners argues that the finding of the Subordinate Judge that the plaintiff was ignorant of the death of Tarman Mahton until the defendants filed their petition on 26th July 1930 does not in itself amount to justification for his waiting until 23rd December before he applied for the substitution of the heirs of the deceased defendant. An application was made on the 29th November, when the court allowed time until 23rd December; but even this application was not within the period prescribed by the Limitation Act. On the question of whether the suit should be regarded as having abated if an application for substitution was not made in time, Mr. Sarju Prosad relies upon the decision in Jankinath Singha Ray v. Nirodbaran Ray AIR 1980 Cal 422 where in it was held that Rules 4 and 9, Order 22 applied to proceedings for the ascertainment of mesne profits, which were governed by Civil P.C., 1908.

But there is a decision to the contrary of this Court in Mt. Bhatia and Another Vs. Abdus Shakur and Others, wherein it was held that in proceedings for the ascertainment of mesne profits failure to bring the heir of a deceased defendant on the record within the time which would be necessary under Order 22, Rule 4, would not cause the suit to abate so far as the right to mesne profits was concerned. That decision was based in the main on the decision of the Privy Council in Lachmi Narain Marwari v. Balmukund Marwari AIR 1924 PC 198 wherein it was held that in proceedings for partition after the preliminary decree had been passed, an application for making the actual partition could not be dismissed on the ground of the plaintiff''s default.

I agree with the learned Assistant Government Advocate that on the whole it would appear that the suit, so far as it was a suit for mesne profits, cannot abate merely because after the preliminary decree the plaintiff fails to bring on the record within the prescribed period the heirs of a deceased defendant. However that may be the learned Subordinate Judge had discretion under Order 22, Rule 9 to set aside the abatement if he was satisfied that the cause shown by the plaintiff was sufficient. It is suggested that in his consideration of this question the learned Subordinate Judge ignored the period of limitation to which reference is made in Order 22, Rule 4; but the whole discussion of the learned Subordinate Judge is on the question of whether there was excuse for the plaintiff for not having brought on the record within the prescribed period the legal representatives of the deceased defendant, and it cannot be suggested that he was ignorant of the period of limitation prescribed by law.

The learned Assistant Government Advocate points out that the defendants'' petition of 26th July 1930 stated that Tarman Mahton had died before the date of the original decree, and that although this statement was not true, it necessitated inquiries which took considerable time and resulted in the petition of 29th November 1930.

These matters have been considered by the learned Subordinate Judge; and even if it should be held that the suit had abated by reason of the plaintiff''s failure to make the legal representatives of the deceased defendant parties within sixty days of his death, there is no irregularity in the exercise, by the learned Subordinate Judge, of his discretion under Order 22, Rule 9, which would warrant interference in revision. The application is therefore dismissed with costs; hearing fee two gold mohurs.