1. The plaintiff who is the appellant brought a suit for recovery of possession of a certain property and for mesne profits. He obtained a preliminary decree which directed that 'the plaintiffs do recover from the defendants wasilat from the date of dispossession to the date of recovery of possession, that the amount of wasilat may be ascertained later on upon the plaintiff's application'. This decree was passed on the 26th September 1918. The plaintiff applied for the determination of the mesne profits and at the same time he filed an application for substitution of the heirs of defendant No. 1 Bepin Krishna Roy in his place who had died before that This application of the plaintiff was (sic) as made in execution proceedings. It appears that no definite order was passed upon the plaintiff's application for substitution. But processes were issued against the heirs sought to be substituted and they entered appearance and took part in the proceedings before the Commissioner. In June 1922 the defendants applied for an order that the decree for wasilat as against defendant No. 1 had abated on which the Court held that it had so abated.
2. On the 22nd July 1922 the plaintiff applied to the Court for setting aside the abatement. On the 30th May 1923 the Court dismissed that application. Hence this appeal.
3. The fight in the lower Court apparently was mainly confined to the question whether the application for the ascertainment of the mesne profits was an application in execution or in the suit That point the learned Subordinate Judge has correctly decided against the plaintiff. Under the Code of 1908 an application for the determination of the mesne profits is an application in the suit: see Order XX, Rule 12, C.P.C. As regards the question whether the plaintiff had made out a case for setting aside the abatement the learned Subordinate Judge refused his application on the ground that the plaintiff might have applied for the ascertainment of mesne profits earlier, that he should not have waited for two years to make the application and that if he had not waited so long in making his application the present question would not have arisen. But these were not the points which the learned Subordinate Judge was required to enquire into in an application for setting aside the abatement. He should have in the first place investigated whether the plaintiff was lawfully prevented from making the application for substitution within the statutory period and in the second place the learned Subordinate Judge should have directed his attention to the question whether in the circumstances of the present case the plaintiff was entitled to the benefit of s: 5 of the Indian Limitation Act in applying for setting aside the abatement. The learned Subordinate Judge has not considered these questions from the true standpoint.
4. We, therefore, set aside the order of the Court below refusing the plaintiff's application to set aside the abatement and send the case back to that Court for re-trial. The Court below will enquire (1) whether the plaintiff was prevented by a lawful cause from making the application for substitution in the place of defendant No. 1 Bepin Krishna Roy within the statutory period, and (2) whether the plaintiff was prevented by any sufficient cause within the meaning of Section 5 of the Indian Limitation Act from making an application for setting aside the abatement within the time allowed by law.
5. The parties will be entitled to adduce fresh evidence on these points.
6. Costs will abide the result. We assess the hearing-fee of this appeal at three gold mohurs.