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Vijaya Singh Dattajirao Thorat Vs. Shivajirao Narayanarao Thorat and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Reported in80Ind.Cas.761
AppellantVijaya Singh Dattajirao Thorat
RespondentShivajirao Narayanarao Thorat and ors.
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 3, 9 - death of plaintiff--abatement--application to bring legal representatives on record, whether can be treated as one to set aside abatement--procedure. - .....of amending the application so as to make it one under order xxii, rule 9. civil procedure code, rejected the application as being made under order xxii, rule 3, and so beyond time. on july 30, 1921, a fresh application was made to set aside the abatement of the suit. the judge, on june 16, 1922, rejected the application on the ground that the delay in making the application could not be excused and expressed an opinion that an appeal ought to have been filed against the order on the previous application. we think that the mistake in this case arose from the method of dealing with the first application of february 28, 1921. if that application had been considered as an application to set aside the abatement, even if the judge had refused it, an appeal in the circumstances of the case.....
Judgment:

1. This is an appeal from an order dismissing the application by one Tarabai on behalf of the minor Vijayasing to set aside the abatement of the suit which was filed by the minor's father. The father died on August 30, 1920. According to the law of limitation then prevailing the suit would abate on February 28, 1921, unless an application had previously been made to put his legal representatives on the record. But on January 1,1921, Act XXVI of 1920 came into force under which the period of limitation for putting the legal representatives on the record was reduced from six months to three months. The application on behalf of the minor had then to be made before January 1, 1921. But it was not made until February 28, and as the suit had then abated, the proper application to make to the Court was to set aside the abatement. The Court, instead of amending the application so as to make it one under Order XXII, Rule 9. Civil Procedure Code, rejected the application as being made under Order XXII, Rule 3, and so beyond time. On July 30, 1921, a fresh application was made to set aside the abatement of the suit. The Judge, on June 16, 1922, rejected the application on the ground that the delay in making the application could not be excused and expressed an opinion that an appeal ought to have been filed against the order on the previous application. We think that the mistake in this case arose from the method of dealing with the first application of February 28, 1921. If that application had been considered as an application to set aside the abatement, even if the Judge had refused it, an appeal in the circumstances of the case should have been successful. We do not think that the minor should be prejudiced by the fact that the proper remedy was not suggested to him by the Court. We set aside the abatement of the suit and place the minor through his next friend on the record.

2. The appellant should pay the costs of this appeal, of the application in the lower Court, and of the civil application for excuse of delay in filing the civil extraordinary application which can now be rejected.


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