1917 (7) TMI 2 - Other - Indian Laws

Summary

Issues Involved:
1. Delay in the substitution of deceased parties.
2. Application of Section 5 and Section 14 of the Limitation Act.
3. Judicial discretion and general rule for extension of limitation period.
4. Ex parte orders and their reconsideration.
5. Proper procedure for abatement and substitution under Civil Procedure Code, 1882.

Detailed Analysis:

1. Delay in the Substitution of Deceased Parties:
The case involved significant delays in substituting the representatives of deceased parties. Raja Balbir Singh died in February 1906, and his successor applied for substitution in May 1906, which was granted ex parte. Similarly, Joti Mal died in April 1906, and his substitution was delayed until December 1907. The District Judge Sanford ordered abatement without proper inquiry or notice to the plaintiff, which was later reconsidered and set aside by his successor under Section 371, Civil Procedure Code.

2. Application of Section 5 and Section 14 of the Limitation Act:
The core issue was whether the time spent in obtaining the District Judge Prenter's judgment, later deemed incorrect, should be excluded in calculating the appeal period. Section 5 allows for an extension if "sufficient cause" is shown, while Section 14 excludes time spent in prosecuting another civil proceeding in good faith. Although Section 14 directly applies to suits, its principles were considered relevant for appeals. The judgment emphasized that a mistake in law could be a foundation for relief under Section 5, referencing the Full Bench decision in Brij Mohan Das v. Mannu Bibi.

3. Judicial Discretion and General Rule for Extension of Limitation Period:
The judgment discussed the judicial discretion under Section 5 of the Limitation Act, highlighting that it must be exercised judicially and not arbitrarily. The case of Karm Bakhsh v. Daulat Ram established a general rule that time spent in prosecuting a review should be excluded from the limitation period for appeals. The judgment confirmed this rule, noting its adoption across various High Courts in India, including Punjab, Calcutta, Madras, and Bombay.

4. Ex Parte Orders and Their Reconsideration:
The ex parte order by District Judge Sanford abating the suit was criticized for being issued without notice to the plaintiff. The judgment emphasized that such orders are tantamount to a judgment in favor of the defendant and should not be issued without giving the opposite party an opportunity to contest. The reconsideration of this order under Section 371 was deemed appropriate, and the District Judge Prenter's judgment setting aside the abatement was upheld.

5. Proper Procedure for Abatement and Substitution under Civil Procedure Code, 1882:
The judgment clarified the procedures under Sections 366 and 368 for substituting parties upon their death. It noted that abatement is a penalty imposed on the plaintiff's failure to act. Section 371 allows setting aside abatement orders, whether under Section 366 or 368, emphasizing that abatement hurts the plaintiff and should be reconsidered if improperly granted. The judgment concluded that the plaintiff's application for substitution was superfluous, as the parties had already been introduced in the Chief Court.

Conclusion:
The appeal was allowed, and the case was remitted to the Chief Court to set aside the District Judge Sanford's abatement order and proceed with the case on its merits. The respondents were ordered to pay the appellant's costs for the appeal and lower court proceedings related to setting aside the abatement order. The general costs of the suit were to abide by the result on the merits.