1. A preliminary objection was made that no appeal lies to this Court: The argument put forward was that this is an order passed by the Special Judge. The only section which applies to appeals from Special Judge is Section 109A of the Bengal Tenancy Act, and that as Section 109A applies only to appeals from appellate orders, and as this is not an appeal from appellate order but from an order no appeallies; and in support of this contention he has relied on the rulings in Motkur Chandra Majumdar v. Tara Sunkar Ghose 7 C.W.N. 440, and Mathura Nath Roy v. Basanta Kumar Chakrctvarti 2 Ind. Cas. 572 : 36 C. 512. As against this the appellant has relied upon the ruling in Manmotha Nath Dey v. Gadadhar Manna 41 Ind. Cas. 751 : 45 C. 381 : 28 Cr.L.J. 155. This latter case is similar in many respects to the present case. In view of this authority we arc of opinion that the appeal docs lie in the present case.
2. This is an appeal from an order refusing to set aside the abatement of, an appeal. The facts appear to be these. The plaintiffs, who are the appellate before this Court, brought a suit under Section 105 of the Bengal Tenancy Act before the Assistant Settlement Officer. This suit was dismissed and the plaintiffs appealed to the Special Judge. While the appeal was pending on the 15th May the Pleader for the respondents Nos. 22 and 25 informed the Court that the respondent No. 1 had died in the month of Pous and respondent No. 5 died in the month of Aghran. On the 15th June the appellants put in an application for substitution of certain persons in the place of respondent No, 1 and respondent No. 5 and the learned Special Judge passed the following order: 'No. 5 died in Aghlan last; six months having elapsed the appeal abates in respect of respondent No. 5. Respondent No. 1 was reported, to have died in Pous last. Substitution be made in his place.' Against the order of abatement in the case of respondent No. 5 the appellants moved the Special Judge and the Special Judge passed the following order on the 13th August 1920: 'Heard the Pleaders. It is argued that appellant had sufficient ground under Section 5 of the limitation Act for not substituting the respondent. But I find in fact that they let two dates fixed' for hearing pass after they had been informed of the death before they attempted to make the substitution. The application is rejected.
3. We think on looking at the facts of the case that the order of abatement was improperly made and the learned Special Judge should have granted the application to set aside the order of abatement. There wag no material before the Court to justify the Court in holding that the appeal had abated against the respondent No. 5. There was No. evidence to show and no allegation as to what date in Aghran the respondent No. 5 died. Had respondent No. 5 died in the last date of Aghran which corresponds too 16th December. the application for substitution of his heirs which was made on the 15th June would be within time. The learned Special Judge was not justified in assuming that the respondent did not die on the last date of Aghran.
4. The appeal will, therefore, succeed and the order of the 13th August 1920 refusing to set aside the abatement will be set aside and the abatement will be set aside and the appeal will be restored and the heirs of the deceased respondent No. 5 will be substituted in his place.
5. The appellants are entitled to their costs in both Courts. We assess the hearing fee in this Court atone gold mohur.