1. This appeal is against the order of the Additional Subordinate Judge, Cocanada, setting aside an abatement of a suit, the order appealed against being passed under Order 22, Rule 9. In ordinary circumstances, no appeal lies against such an order, but in the circumstances of this case it is contended that the order appealed against was passed without jurisdiction and vitiated by material irregularity.
2. The plaintiff, who is the respondent in this, appeal, sued one M. Narayana Rao in the Court of the District Munsif of Peddapur on a mortgage and on 27th November, 1918, obtained a preliminary decree. It since transpired that the judgment-debtor died on the morning of 27th November, 1918, before the decree was passed. The plaintiff admits that, not long after the decree, he came to know of the fact of the death of the judgment-debtor, but not of the actual date of it, and assumed that he had died after the decree and that therefore the decree was valid. He took no steps to bring on the legal representatives until 27th August, 1920, when he filed E. A. No. 2411 of 1920 under Order 34, Rule 5, wherein, while setting out that the judgment-debtor had died and entering his widow (the present appellant) as the defendant in the petition, he asked merely that a final decree be passed. The present appellant in her counter pointed out that the judgment-debtor had died before the preliminary decree was passed, that no petition to bring on the legal representative on record had been put in in time, that therefore the suit had abated, and that the date of limitation for bringing on the legal representatives had passed. Even after this allegation the plaintiff did nothing until 23rd March, 1921, when he put in E. A. No. 911 of 1921 in which he asked that the delay in bringing on the legal representative be excused, and that a final decree be passed. In his affidavit to that petition, he persisted in saying that the defendant judgment-debtor died after the decree and that the allegation that he died before the decree was not true.
3. The District Munsif dismissed both the petitions. The Additional Subordinate Judge, on appeal, held that the application, E. A. No. 2411 of 1920, may be treated as one for setting aside the abatement of the suit and that the excuse for the delay in filing such an application is reasonable and he set aside the abatement of the suit and directed the District Munsif to take it on file and proceed with it.
4. It is not now disputed that the judgment-debtor died before the preliminary decree was passed, that therefore the preliminary decree was a nullity, and that no steps to bring on the legal representative were taken within six months of 27th November, 1918, as required by the Limitation Act then in force. It follows that the suit abated on 26th May, 19I9. The plaintiff no doubt contends that in Order 22, Rule 4, the phrase ' right to sue ' does not apply after a preliminary decree is passed and that therefore there is no limitation to the period within which he was bound to apply to have the legal representative brought on : but, apart from the fact that the law is at present against him on this point see Subbarayudu v. Ramadasu ILR (1921) M 872 : 1921 42 MLJ 301 there is the obvious rejoinder that there was in fact no valid preliminary decree and therefore the suit has not even reached the stage of a preliminary decree. Clearly then, the suit abated on 26th May, 1919.
5. The first point to be noted is that, though the plaintiff has never asked that the abatement be set aside, the Lower Court, nevertheless, chose to treat his E. A. No. 2411 of 1920 as a prayer for that relief. That E. A., as already pointed out, was not put in under Order 22 at all but under Order 34. Not only that; when the present appellant's rejoinder to it pointed out that the suit had abated, the plaintiff evidently, without making any enquiry, chose to take the standpoint that the suit had not abated and maintained that standpoint in his second petition E. A. No. 911 and never then asked for the abatement to be set aside. It is true that E. A. No. 911 purports to have been put in, inter alia, under Order 22, Rules 4 and 9, but even then he did not pray for the abatement being set aside, nor does the lower Appellate Court make any reference to that E. A. in the body of its order. Had it been pleaded before it that E. A. No. 911 impliedly contained a prayer for the abatement being set aside, we cannot see why he should have thought it necessary to fall back on E. A. No. 2411 of 1920 in order to discover such an implied prayer for that relief, even in his grounds of appeal before the Lower Appellate Court, the plaintiff styles E. A. No. 911 merely as a petition to excuse the delay in bringing the legal representative on record. We must hold that technically there was not before the District Munsif or the Lower Appellate Court any prayer under Order 22, Rule 9 to set aside the abatement, and therefore the Lower Appellate Court had no jurisdiction to set it aside.
6. There is a further technical difficulty in the plaintiff's way. E. A. No. 911 was dismissed by the District Munsif under a separate order, and no copy of that order seems to have been put in in the Lower Appellate Court and no petition asking to excuse the omission to file it has been filed. There was therefore no proper appeal against that order filed in the Lower Appellate Court. This may be the reason why the Lower Appellate Court ignores E. A. No. 911 altogether in its judgment. Here also, we must hold that the Lower Appellate Court had not before it any legal appeal against the order in E. A. No. 911 and had therefore no jurisdiction to set that order aside. Technically it remains in force and is a legal bar to the present appellant being brought on record as the legal representative of the deceased judgment-debtor.
7. Now, when it is necessary in order to do substantial justice to brush aside technicalities, the Court will not be too scrupulous in enforcing them; but when, as we find in this case, there are no merits in the plaintiff's favour and the merits are on the appellant's side, the Court will not go out of its way to clear from the plaintiff's path technical obstacles. As already pointed out, although the plaintiff knew of the death of the judgment-debtor, he did not make any enquiry as to when it had occurred or make any attempt to have the legal representative brought on record within the legal period, six months. He did not even in E. A. No. 2411 ask the legal representative to be brought on record and he did not do so until 23.3.1921, nearly two years after the last day for bringing on the legal representative; and, even though it had been pointed out to him on 4.12.1920 by the appellant's counter that the suit had abated, he omitted or refused to make any enquiry, categorically said that that allegation was not true, and refused to believe that there had been any abatement, and that there should be a petition to set it aside. So that even now up to date there is no petition to set aside the abatement. The Lower Appellate Court's reasons for indulging the plaintiff are based wholly on unsupported surmises; that the plaintiff's pleader might have been ignorant of the law or that the plaintiff had this or that mistaken idea in his head. He announces a general plenary indulgence to parties to take their own time for applying for a final decree and that the 'usual procrastination of plaintiffs' is a good ground for calling in aid Section 5 of the Limitation Act. Such a principle is subversive of that Act altogether. We cannot see any ground for granting any indulgence to such a dilatory, negligent and mendacious party and we are not prepared to override the technical difficulties in the plaintiff's way.
8. We hold therefore that the Lower Appellate Court's order is without jurisdiction, first because it had before it no prayer to set aside the abatement and no substantive motion under Order 22, Rule 9, and secondly because that it had no jurisdiction to revise the order on E. A. No. 911 which was not properly before it. It follows that its order, though technically one under Order 22, Rule 9, and technically not appealable under that order was not really passed under that order because it was passed without jurisdiction, and is therefore appealable or at least open to revision on the ground that it was without jurisdiction. We therefore set aside and restore that of the District Munsif with costs of the appellant throughout.