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Priya Sundari Dasya Vs. Golapdi Sheik and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal294,51Ind.Cas.534
AppellantPriya Sundari Dasya
RespondentGolapdi Sheik and anr.
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 9 - limitation act (ix of 1908), schedule i, articles 171, 176--death of plaintiff--abatement, order of, before expiry of six months--application for setting aside order of abatement within sixty days of order, whether maintainable. - .....the deceased, but the court made an order three days before the expiry of the six months that the suit had abated and in the circumstances, the pleader for the petitioner advised him to make an application for setting aside the order of abatement. this was admittedly done within the period of 60 days from the date of abatement.4. the order of the court that the suit had abated, which was passed three days too soon, was clearly wrong and if that order had not been made, the petitioner could have made the application for substitution within six months. after the order of abatement was passed, it is difficult to see how the application for substitution could be made within the six months. the learned munsif says: 'it appears that the order abating the suit was made before 6 months had.....
Judgment:

1. No one appears to show cause in this Rule.

2. The petitioner is the legal representative of the deceased plaintiff.

3. It appears that he instructed his Pleader two days before the expiry of six months for making an application for substitution in the place of the deceased, but the Court made an order three days before the expiry of the six months that the suit had abated and in the circumstances, the Pleader for the petitioner advised him to make an application for setting aside the order of abatement. This was admittedly done within the period of 60 days from the date of abatement.

4. The order of the Court that the suit had abated, which was passed three days too soon, was clearly wrong and if that order had not been made, the petitioner could have made the application for substitution within six months. After the order of abatement was passed, it is difficult to see how the application for substitution could be made within the six months. The learned Munsif says: 'it appears that the order abating the suit was made before 6 months had elapsed.'

5. In all these circumstances we think that the order of the Court below, refusing to set aside the abatement, should be set aside and the suit tried with the petitioner as the legal representative of the plaintiff.


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