Mukerji, Ag. C.J.
1. This is a plaintiff's appeal and arises under the following circumstances:
2. The plaintiff Badri Prasad brought a suit for sale against one Mashuq Ali and certain other persons who wereimpleaded as subsequent transferees of the property mortgaged. A preliminary decree for sale was made in due course, and an application was made for the passing of a final decree on 1st May 1925. The application did not say when Mashuq Ali died, but it was directed against the heirs of Mashuq Ali and the subsequent transferees of the mortgaged property. When a controversy arose as to when Mashuq Ali died, it was found that he had died on some date in September 1924, that is to say, more than 150 days before the application for final decree was made. The plaintiff filed an affidavit to the effect that he was not aware of the death of Mashuq Ali, and that was the reason why he could not make an application for substitution of names on the record till 1st May 1925. The learned Subordinate Judge, who was seised of the application, passed the following order:
The applicant's allegation that he was prevented from making Mashuq Ali's heirs parties in time by his ignorance of Mashuq Ali's death cannot be accepted... especially when Hardial who was prosecuting the case for the applicant impleaded them in his own Suit No. 2 of 1922. I therefore hold that the suit has abated as against Mashuq Ali's heirs and reject his application claiming the benefit of Section 5, Lim. Act.
3. A decree was passed against the subsequent transferees by the learned Judge on 28th August 1926, but the decretal amount was reduced to 4O% of the total amount due to the plaintiff, evidently on the ground that the properties in the hands of the transferees represented 40% of the value of the entire property mortgaged. The plaintiff filed an appeal before the learned District Judge and he raised the question as to the setting aside of the abatement. The learned Judge decided the point by the following sentence in his judgment:
If the application of Badri Prasad be construed as an application under Order 22, Rule 9, to set aside an order of abatement, there is no allegation in the application of due diligence on the part of the applicant...The ignorance of the factum of the death of a party is no excuse.
4. In the result the learned Judge dismissed the appeal. A second appeal has been filed, and it is contended that the abatement should have been set aside by the Court below, and the application should have been adjudicated on as against the entire body of the heirs of Mashuq Ali. For the respondents their learned Counsel has argued several points, and we shall take them one by one. The first point is that in second appeal the plantiff is precluded from raising the point, namely, the abatement should have been set aside. The learned Counsel relies on Section 105, Civil P.C., and on Order 43. His argument is that only one appeal is allowed from an order, and as no second appeal from order lies, the order is final, and cannot be challenged. As regards Section 105 his argument is that an order refusing to set aside an abatement does not affect the merits of the case, and he cites by way of example certain cases where it was held that the setting aside of an abatement did not affect the case on the merits.
5. We are of opinion that this argument of the learned Counsel is not sound. It is true that no second appeal lies from an order, but an order may be questioned in a second appeal if it 'affects the decision of the case.' What affects the decision of the case has been stated in many decided cases under different circumstances. An order setting aside the abatement does not affect the merits of the case, because the result is that the parties are before the Court and the Court adjudicates in the presence of the parties. Every one of the parties is present there to represent his case, and therefore the decision is not affected. But where an abatement is not set aside, the result is that certain parties are dismissed from the case, and so far the parties go out of the case, the other party has no remedy left. The decision therefore is given not on the merits but on a purely technical ground. We are of opinion that in second appeal the order refusing to set aside the abatement may be questioned.
6. The next point argued by the learned Counsel for the respondents is that the Courts below have exercised their discretion in not applying Section 5, Limitation Act, to the application for setting aside the abatement, and that discretion cannot be questioned in second appeal. It may be for the present conceded that where a discretion has been exercised on proper lines that discretion may not be questioned in second appeal. But where the discretion has been exercised arbitrarily without due regard to principles, that discretion cannot be said to have been properly exercised, and it may be challenged in second appeal.
7. In this particular case both the learned Judges of the Courts below have acted almost arbitrarily and without following sound legal principles. We have quoted the two orders of the learned Judges almost in extensor only to show that no proper discretion has been used in the case. The first Court says that the plaintiff's allegation that he never knew of the death of Mashuq Ali cannot be accepted. He does not give any reason beyond this: that one Hardial was prosecuting his own case and he had impleaded the heirs of Mashuq Ali in his own suit, and Hardial was the same man who was looking after the plaintiff's case, which is now before us in second appeal. There is no indication how far Hardial wasauthorized to prosecute the plaintiff's case. We do not know whether Hardial held a power of attorney on behalf of the plaintiff to prosecute the case. Then there is no rule in the Civil Procedure Code which lays down that in all circumstances, an information received by a servant or a friend of a party, who is looking after a case, must be imputed to the party himself. Section 229, Contract Act, has no application, nor has the definition of 'notice' to be found in the Transfer of Property Act any application to the facts of this case. Then if the plaintiff was as a matter of fact ignorant of Mashuq Ali's death, that should be a sufficient excuse for his not applying for making the legal representatives of Mashuq Ali parties.
8. As regards the learned District Judge, he has said that the plaintiff's application did not disclose any allegation of due diligence. Certainly it could not be expected of the plaintiff that he would periodically visit the house of Mashuq Ali and other defendants, in order to find out whether Mashuq Ali or any of the defendants were alive or dead. There is no question of ddiligence in the circumstances. The question of diligence would arise only when Mashub Ali's death was brought to the notice of the plaintiff. In our opinion the learned Judges of the Court below have used their discretion in a purely arbitrary manner and therefore that discretion is liable to a correction in second appeal. The result is that we allow the appeal, set aside the decree of the Courts below and send back the case to the Court of first instance through the lower appellate Court and direct the Court of first instance to bring the legal representatives of Mashuq Ali on the record and to proceed to decide the application in accordance with law. The appellant will have his costs throughout.