Patna High Court
E.O.R Myers vs Divakar Mani Lal And Co. on 3 May, 1921
Equivalent citations: 62IND. CAS.100
JUDGMENT
1. The present application for substitution is, in our view, governed by the new Law of Limitation, which same into force on the 1st of January 1921. It does not matter that the appellant died before the said date. This was the view taken only a few days ago in the case of Suba Rai v. Amrit Rai (Second Appeal No. 431 of 1918) and is based upon the principle that the Law of Limitation is a branch of the adjective law and governs all proceedings to which it is applicable from the date of its enactment, as was held in the case of Krishna Dayal v. Musammat Sakina Bibi 34 Ind. Cas. 27 : 1 P.L.J. 214 at p. 220 : 20 C.W.N. 952 : 2 P.L.W. 370. The view in that case was arrived at on a consideration of the authorities on the subject. Vide also a Full Bench decision of the Allahabad High Court in the case of Chajmal Das v. Jagdamba Prasad 11 A. 403 : 6 Ind. Dec. (N.S.) 688.
2. We are, however, of opinion that in the circumstances of the present case the abatement should be set aside. The applicants have some within 60 days from the date the suit abated. They have shown that they were prevented by sufficient cause from continuing the suit under Clause (2) of Rule 9, Order XXII of the Code of Civil Procedure. The fact that an application for Probate was made and was pending on the date when the suit abated and was subsequently granted on the 25th January 1921, may, in certain circumstances, be deemed to be a sufficient cause for not making the application before the prescribed period, namely, before the 1st January 1921. In the sworn petition of the 16th March 1921, the applicants have given the circumstances which prevented them from making the application, namely, (1) that one of the executors was unwilling to work, (2) that the petitioners were unacquainted with the affairs of the estate of the deceased, and (3) that they were further advised by their Pleader that the application for substitution should be made within six months, inasmuch as the death of the appellant occurred before the new Limitation Act came into operation. It is possible that the aforesaid grounds taken separately may not be considered to be sufficient, but taking them together and particularly in view of the fact stated above that the Probate was not granted till after the appeal abated, we think the applicants have made out a sufficient case which prevented them from making the application within the prescribed limit. We would, therefore, set aside the abatement, and direct substitution of the applicants to be made in place of the deceased appellant.
3. The applicants must pay three gold mohurs to the opposite party before the substitution is made. At the request of the learned Vakil for the applicants, time is allowed till 17th May 1921 to make payment.