1917 (7) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Abatement of the suit due to non-substitution of deceased parties within the prescribed time.
2. Validity of the District Judge's ex parte order for abatement.
3. Applicability of Sections 306, 368, and 371 of the Civil Procedure Code (1882) in setting aside the abatement order.
4. Calculation of the limitation period for filing an appeal under Section 5 of the Indian Limitation Act.
5. General rule regarding the exclusion of time spent in prosecuting a review application from the limitation period for appeals.

Detailed Analysis:

1. Abatement of the Suit Due to Non-Substitution of Deceased Parties Within the Prescribed Time:
The case arose from a suit filed in 1903 by the plaintiff for a declaration that certain attached property was not liable for attachment. Significant delays occurred, and during the proceedings, several parties, including Raja Balbir Singh, Joti Mal, and Mr. G.H. Coates, passed away. Applications for substitution of their representatives were made but not within the prescribed time. Consequently, an application for abatement was filed by the defendants, arguing that the representatives were not put on record within time.

2. Validity of the District Judge's Ex Parte Order for Abatement:
The new District Judge, Captain Sanford, without notice to the plaintiff or inquiry, ordered abatement based on the grounds that the representatives were not substituted within time. This order was passed ex parte and without considering previous orders from the Chief Court. The plaintiff's subsequent petition led to the reconsideration and setting aside of the abatement order by the succeeding District Judge, Prenter.

3. Applicability of Sections 306, 368, and 371 of the Civil Procedure Code (1882) in Setting Aside the Abatement Order:
The judgment highlighted that Section 371 authorized setting aside the abatement in cases of failure to substitute a new plaintiff under Section 366 but did not extend to failures under Section 368 for substituting a new defendant. Despite this, the District Judge Prenter set aside the abatement order for both plaintiffs and defendants, which was later quashed by Mr. Justice Johnstone, who held that the proper remedy was an appeal, not a review.

4. Calculation of the Limitation Period for Filing an Appeal Under Section 5 of the Indian Limitation Act:
The core issue was whether the time spent in setting aside the District Judge Prenter's judgment could be excluded from the limitation period for filing an appeal. Section 5 of the Indian Limitation Act allows for appeals to be admitted after the period of limitation if sufficient cause is shown. The judgment referenced Section 14, which, although dealing with suits, was considered relevant for its principle of excluding time spent in prosecuting another proceeding with due diligence and in good faith.

5. General Rule Regarding the Exclusion of Time Spent in Prosecuting a Review Application from the Limitation Period for Appeals:
The judgment discussed the case of Ramjiwan Mal v. Chand Mal, which suggested that a mistake in law could not be the basis for extending the limitation period. However, this was reversed by Brij Mohan Das v. Mannu Bibi, which allowed for mistakes in law to be considered. The judgment concluded that a general rule existed, allowing the exclusion of time spent in prosecuting a review application from the limitation period for appeals if done with due diligence and in good faith.

Conclusion:
The appeal was allowed, and the case was remitted to the Chief Court to set aside the District Judge Sanford's order and proceed with the hearing on merits. The judgment emphasized the importance of judicial discretion and criticized the practice of ex parte orders for abatement without notice to the opposite party. The respondents were ordered to pay the appellant's costs for the appeal and the proceedings directed at setting aside the abatement order. The general costs of the suit were to abide by the result on merits.