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Sewa Ram and ors. Vs. Giyan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All180; 153Ind.Cas.465
AppellantSewa Ram and ors.
RespondentGiyan Singh and ors.
Excerpt:
- .....of the knowledge of their deaths but waited and long afterwards applied for the preparation of a final decree against their heirs. objection was at once taken by the latter that the suit had abated as against munshi lal and kabul singh and no final decree should be prepared. the court below has overruled this objection on the ground that rule 12, order 22, civil p.c., was amended on 14th february 1931 under which there would no longer be an abatement once a preliminary decree for sale on a mortgage has been passed. but obviously this amendment could not have a retrospective effect. the suit having previously abated as against kabul singh and munshi lal the preliminary decree as against them was non-existent and no final decree could be prepared unless the previous abatement had been.....
Judgment:

1. This is a defendants' appeal in which the only question is whether the suit had abated against two defendants, Kabul Singh and Munshi Lal or not. Admittedly these defendants died in March 1929 and the lower appellate Court has found that there cannot be the least doubt that, at least by April 1931, the plaintiff was aware of their deaths because a notice of a suit brought by the heirs against him was served on him on that date. Lie took no steps to bring the heirs of the deceased on the record within 90 days of the knowledge of their deaths but waited and long afterwards applied for the preparation of a final decree against their heirs. Objection was at once taken by the latter that the suit had abated as against Munshi Lal and Kabul Singh and no final decree should be prepared. The Court below has overruled this objection on the ground that Rule 12, Order 22, Civil P.C., was amended on 14th February 1931 under which there would no longer be an abatement once a preliminary decree for sale on a mortgage has been passed. But obviously this amendment could not have a retrospective effect. The suit having previously abated as against Kabul Singh and Munshi Lal the preliminary decree as against them was non-existent and no final decree could be prepared unless the previous abatement had been set aside. The mere fact that the law was changed which would now not make a suit abate on the death of a defendant after the passing of a preliminary decree cannot have the effect of automatically reviving all suits which had abated previous to the amendment. We think that the Court below has erred in thinking that the law which applies to the facts of this case was the law which was in force on the date when the application for the preparation of the final decree was made. In our opinion the abatement having taken place under the old law the decree against the two deceased respondents was nonexistent and without the abatement having been set aside on a proper application being made within time no final decree can be prepared.

2. We accordingly allow this appeal and setting aside the decree of the lower appellate Court restore that of the first Court with costs in this Court and in the lower appellate Court. The order as to costs in the first Court will stand.


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