1. This application arises out of an appeal preferred by Babu Gopal Lal, the plaintiff, against Kerani Gope and others. One of the respondents was Babu Ugra Mohan Thakur, who died on the 29th January 1914. On the 28th August 1914, the plaintiff applied that Mr. F.A. Savi, Babu Hem Chandra Mitra and Babu Suruj Mohan Thakur, a minor under the guardianship of his mother, Srimuty Sundari Debi Thakurani, should be substituted on the record as the legal representatives of the said Ugra Mohan Thakur, He obtained a Rule from this Court calling upon the opposite party; to show cause, why the substitution prayed for should not be made. Subsequently the minor's; name was expunged from the Rule at the risk of the petitioner.
2. The application of the 28th August 1914 was clearly out of time, and it has been argued on behalf of the opposite party that this Rule must, therefore, be discharged. We think, however, that the application is in substance an application for an order to set aside the abatement of the appeal, as against Ugra Mohan Thakur's representatives, which took place ipso facto six months after Ugra Mohan Thakur died. To succeed the appellant is bound to show that he was prevented by sufficient cause from continuing ,the suit, which clearly means that he was prevented by sufficient cause from taking steps, in time to avoid the abatement.
3. It has been said that we have discretion in the matter; but, in my opinion, we have no discretion at all. If sufficient cause is proved the appellant is entitled as a matter of right to have the abatement set aside; if it is not proved, the respondent is equally entitled to have the application refused.
4. Now, the sufficient cause alleged is stated in Paragraph 7 of the application which runs as follows;--'Because the two Wills and the appointment of the executors were sub-judice, your petitioner's son, Babu Gulzari Lal who looks after the aforesaid appeal, was advised by mufussil Vakils to wait till any decision was arrived at and that, therefore; no steps were taken towards the substitution.' Evidently this is an extremely vague allegation. The petitioner says that he learnt of Ugra Mohan's death long after it had occurred. He does not say when he was given this somewhat surprising advice by the mufussil Vakils or whether this advice was given within the period of six months. In the end, as I have already pointed out, he did not apply to have the party whose application for Probate succeeded made the exclusive representative of Ugra Mohan. The executors of both Wills and the minor, who was he beneficiary of one of the Wills, were all made representatives, and, I cannot see why the petitioner should not have made this application as it stands within a month of Ugrra Mohan's death. It is clear that the final form of this application was not, as a fact, influenced by the decision in the Probate cases; for the unsuccessful parties in those cases, as well as the successful ones, were all made parties to it. I think it impossible to hold that, when succession to the estate of a deceased person is in doubt, a person litigating with the deceased need not take any steps to bring the representatives on the record until that doubt has been finally resolved.
5. The action which should be taken in such a case and which met with the approval of this Court, is described in the case of Syed Hossein Ali v. Abdur Rahim 7 C.W.N. 529. In the present application, there is really nothing-whatever to show that the petitioner took any steps at all of any kind within six months of Ugra Mohan's death. After that time he applied to this Court and obtained a fortnight's time, but no formal order seems to have been recorded and we have nothing with respect to that order except a mere note by a clerk. We cannot, therefore, feel certain that the learned Judges, who passed that order, considered themselves to be dealing with the matter as coming under Order XXII, Rule 9, so that their decision would be binding upon us.
6. In my opinion, the appellant has not proved that he was prevented by sufficient cause from going on with this suit within the time allowed by law. That being so, the opposite party is entitled to a declaration that the appeal, which has abated as against them shall not be revived against them. The rule will be discharged.
7. I agree.