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Bhupal Kurmi Vs. Pearey Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in63Ind.Cas.230
AppellantBhupal Kurmi
RespondentPearey Lal and ors.
Excerpt:
civil procedure code (act v of 1908), section 116 - abatement, order of, set aside--order, whether can he revised. - - a suit for sale was brought and a preliminary decree was obtained on the 3rd of february 1916, allowing the defendants six months within which to make good the amount. 'it cannot be said that the court below has exercise a jurisdiction not vested in it by law, nor can it be said to have failed to exercise jurisdiction so vested in it, nor can it be said to have acted illegally or with material irregularity in the exercise of its jurisdiction......the ground of revision is that the munsif had really not before him sufficient cause to set aside the abatement. this is a matter which, in my opinion, does not fall within the purview of section 115 of the civil procedure code. 'it cannot be said that the court below has exercise a jurisdiction not vested in it by law, nor can it be said to have failed to exercise jurisdiction so vested in it, nor can it be said to have acted illegally or with material irregularity in the exercise of its jurisdiction. the reasons given by it is setting aside the abatement may or may not be sufficient cause, but nothing that the munsif has done brings this matter within the purview of section 115 of the civil procedure code. the application, therefore, fails and is dismissed with costs.
Judgment:

Tudball, J.

1. The simple facts of this case are as follows: A suit for sale was brought and a preliminary decree was obtained on the 3rd of February 1916, allowing the defendants six months within which to make good the amount. No action was taken until the 3rd of February 1919. In between, and much more than the six months prior to the 3rd February 1919, the defendant had died. The plaintiff applied to the Court, alleging the fast of the death, asking that if any order of abatement had been passed it should be set aside on the ground that he was ignorant of the law as it now stood and further asking that the heirs be brought on the record and the suit continued as against them and a final decree be passed. The Munsif, first of all, on the fasts raised an order that the suit had abated, but this was quite unnecessary as under the law the abatement in such a case takes place automatically. He then proceeded, for reasons given by him, to hold that the plaintiff had shown sufficient cause and under Order XXI, Rule 8, set aside the order of abatement and proceeded with the suit. The opposite party has tome here in revision and practically the ground of revision is that the Munsif had really not before him sufficient cause to set aside the abatement. This is a matter which, in my opinion, does not fall within the purview of Section 115 of the Civil Procedure Code. 'It cannot be said that the Court below has exercise a jurisdiction not vested in it by law, nor can it be said to have failed to exercise jurisdiction so vested in it, nor can it be said to have acted illegally or with material irregularity in the exercise of its jurisdiction. The reasons given by it is setting aside the abatement may or may not be sufficient cause, but nothing that the Munsif has done brings this matter within the purview of Section 115 of the Civil Procedure Code. The application, therefore, fails and is dismissed with costs.


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