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Janakinath Singha Ray Vs. Nirodbaran Ray and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal422
AppellantJanakinath Singha Ray
RespondentNirodbaran Ray and ors.
Cases ReferredKedarnath Goenka v. Anant Prasad Singh
Excerpt:
- .....november 1927, refusing to act aside an abatement of the suit with regard to the ascertainment of mesne profits, as directed by the court under order 20, rule 12, civil p.c. the first contention on behalf of the appellant is that the procedure which governs this case should be according to the rules laid down in the repealed code of civil procedure of 1882 and not by the code of 1908 and the reason given in support of this contention is that the suit for possession and for mesne profits was brought on 7th april 1908, when the present code had not come into operation. the suit was decreed in the trial court on 29th june 1909, and dismissed on appeal by the defendant. that decree was set aside by the high court on 11th march 1916, winch reraandel the case for fresh trial to the first.....
Judgment:

1. This is an appeal by the plaintiff against the order of the Subordinate Judge, dated 11th November 1927, refusing to act aside an abatement of the suit with regard to the ascertainment of mesne profits, as directed by the Court under Order 20, Rule 12, Civil P.C. The first contention on behalf of the appellant is that the procedure which governs this case should be according to the rules laid down in the repealed Code of Civil Procedure of 1882 and not by the Code of 1908 and the reason given in support of this contention is that the suit for possession and for mesne profits was brought on 7th April 1908, when the present Code had not come into operation. The suit was decreed in the trial Court on 29th June 1909, and dismissed on appeal by the defendant. That decree was set aside by the High Court on 11th March 1916, winch reraandel the case for fresh trial to the first Court and, on such retrial, the suit was finally decreed on 14th September 1918. In the decree, it was directed that proceedings with regard to the amount of mesne profits will be taken later on under Order 20, Rule 12 of the Code of 1908. The learned advocate for the appellant relies upon the case of Kedarnath Goenka v. Anant Prasad Singh in support of his contention that, in this case, the proceedings for ascertainment of mesne profits should be considered as a matter in execution, as it used to be done under the Code of 1882. That being so, the rules as regards the abatement of a suit would not apply to these proceedings. The case relied upon by the appellant does riot seem to us to support the proposition put forward. In that case the decree of the trial Court was made under the old Code of 1882, by which it was directed that the mesne profits should be ascertained in execution. That decree was affirmed on appeal and finally by the Judicial Committee after the Code of 1908 came into operation, but there was no alteration in the terms of the decree. In that case their Lordships held that the ascertainment of the mesne profits was a matter to be proceeded with in execution, and the rules laid down for abatement of suits do not apply to those proceedings. In the present case the decree was as contemplated under Order 20, Rule 12, Civil P.C. of 1903 and it was rightly so. No person has any vested interest in procedure and it is well settled that matters of procedure apply, to a pending suit if the law is changed, during the pendency of the suit. The rules as regards abatement of a suit will, therefore, apply to the present case, as provided in the Code of 1908. Ii is not disputed that, if that is so, the suit abated in the present case as against defendant 1. Defendant 1 died on 18th December 1919. The plaintiff took possession of the property in execution in 1918. One of the sons of the original defendant 1 died on 3rd March 1920. On 17th December 1920, the plaintiff made an application to the Court for substitution of the heirs of the deceased defendant 1 and also that of his deceased son Manmathanath Ray. In that application the petitioner did not state the date of the death of either of those persons and ha simply prayed for substitution of the heirs of the deceased persons without stating any fact that the suit had abated or that the application or substitution was made beyond time or that on account of any fact the petitioner was entitled to an extension of the period of limitation for making the application under Section 5, Lim. Act.

2. The Munsif apparently made an order substituting the heirs of those deceased persons, some of whom were minors represented by their guardians appointed by the District Court. Then it was found that the claim was beyond the pecuniary jurisdiction of the Munsiff and the case was transferred to the Sub-ordinate Judge. After a considerable lapse of time it was objected on the part of. the defendants that the suit had actually abated as against defendant 1. Thereupon, on 22nd July 1922, an application was made by the appellant purporting to have been under Order 22, Rule 9, of the Code for setting aside the abatement. Even in that petition, no prayer was made for extending the period of limitation for making such an application, nor were there any facts stated which would entitle him to ask for such an indulgence from the Court. The only thing that was stated in this petition of 22nd July 1922, was that the plaintiff came to know of the death of defendant 1 on 2nd December 1920. On these facts, the learned Subordinate Judge refused to set aside the abatement and the appeal is against that order. The Subordinate Judge held that the application under Order 22, Rule 9, was timebarred, as it undoubtedly was and there was no ground for extending I the period of limitation under Section 5, Lim. Act. It is contended, on behalf of the appellant, that, in some cases in this Court the application for substitution has been taken as an application for setting aside an abatement. That might have been with reference to the facts stated in those particular cases in the petition for substitution. In this case, the petition cannot be taken to have been a proper application at all. No dates were given either of the death of she persons whose heirs were sought to be substituted or the date when the I plaintiff came to know about their death or any ground which might induce the Court to extend the period of limitation. At first sight, the Court might consider that the petition of 17th December 1920 was quite in order and the application for substitution was made on account of the death of the persons mentioned there within three months of their death. This does not seem to be a bona tide application at all. Under such circumstances, we agree with the learned Subordinate Judge that the abatement should not be set aside and the application was barred by limitation and that no grounds have been shown why the period of limitation I should be extended under Section 5, Lim. Act. This appeal must, therefore, stand dismissed with costs, hearing fee, five gold mohurs.


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