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Kariyappa Fakirappa Vs. Tantappa BIn Kariyappa Kasawal and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1923Bom40; 70Ind.Cas.832
AppellantKariyappa Fakirappa
RespondentTantappa BIn Kariyappa Kasawal and ors.
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 9 - appellant, death of--minor heir--representation not made within time under mistaken view of law--abatement, setting aside of. - - it is evident from the application which was first made on the 13th june, that the guardian of the minor was clearly under a mistaken impression as to the law on the point......on behalf of his minor son and hair by his cousin gividappa on the 13th june 1921 to bring the minor heir on the record. that application would be in time according to the limitation act of 1908 as it stood prior to the amendment, as it was made in six months. that was, however, rejected because the period was reduced by the amending act xxvi of 1920 to three months. then he made an application on the 22nd july 1921 to set aside the abatement and to allow the minor son as represented by his cousin to continue the appeal. in support of that application he apparently relied upon section 6 of the limitation act; but the learned judge held the section to be inapplicable and accordingly rejected the application. the order, however, refusing to set-aside the abatement is appealable under.....
Judgment:

1. In this case the appellant before the District Court of Dharwar died on the 12th December 1920. He was original defendant No. 4. An application was made on behalf of his minor son and hair by his cousin Gividappa on the 13th June 1921 to bring the minor heir on the record. That application would be in time according to the Limitation Act of 1908 as it stood prior to the amendment, as it was made in six months. That was, however, rejected because the period was reduced by the amending Act XXVI of 1920 to three months. Then he made an application on the 22nd July 1921 to set aside the abatement and to allow the minor son as represented by his cousin to continue the appeal. In support of that application he apparently relied upon Section 6 of the Limitation Act; but the learned Judge held the section to be inapplicable and accordingly rejected the application. The order, however, refusing to set-aside the abatement is appealable under Order XLIII, Clause (k).

2. In the appeal before us it is contended that, in view of the ignorance of the party as to the change in the period of limitation, and of the fact that the heir is a minor, it will be really a matter of injustice, and hardship if he is not allowed to continue the appeal. It is unfortunate that a proceeding of this nature which deserves to be carefully attended to by the party or the Pleader concerned has not been attended to in that manner with the result that the application was not properly drawn up and no proper affidavit was put in to show that there was sufficient reason to allow the application even though it was in law beyond time. Naturally, the respondent's Pleader here has relied upon the absence of materials on this point to show that the order made by the learned District Judge should not be disturbed. Having regard to the change in the law and to the fact that the application was made on behalf of the minor heir, I do not think it would be just to allow the order appealed from to stand. It is evident from the application which was first made on the 13th June, that the guardian of the minor was clearly under a mistaken impression as to the law on the point. I think it would be fair to allow this appeal though the ground put forward before the District Judge in support of the application is not tenable. I would allow the appeal, set aside the abatement and allow the application of Govindappa to continue the appeal on behalf of the minor heir in the District Court. No order as to costs.


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