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1 - 3 of 3 (0.19 seconds)The Code of Civil Procedure, 1908
Kedarnath Goenka vs Anant Prasad Singh on 9 February, 1925
The learned advocate for the appellant relies upon the case of Kedarnath Goenka v. Anant Prasad Singh in support of his contention that, in this case, the proceedings for ascertainment of mesne profits should be considered as a matter in execution, as it used to be done under the Code of 1882. That being so, the rules as regards the abatement of a suit would not apply to these proceedings. The case relied upon by the appellant does riot seem to us to support the proposition put forward. In that case the decree of the trial Court was made under the old Code of 1882, by which it was directed that the mesne profits should be ascertained in execution. That decree was affirmed on appeal and finally by the Judicial Committee after the Code of 1908 came into operation, but there was no alteration in the terms of the decree. In that case their Lordships held that the ascertainment of the mesne profits was a matter to be proceeded with in execution, and the rules laid down for abatement of suits do not apply to those proceedings. In the present case the decree was as contemplated under Order 20, Rule 12, Civil P.C. of 1903 and it was rightly so. No person has any vested interest in procedure and it is well settled that matters of procedure apply, to a pending suit if the law is changed, during the pendency of the suit. The rules as regards abatement of a suit will, therefore, apply to the present case, as provided in the Code of 1908. Ii is not disputed that, if that is so, the suit abated in the present case as against defendant 1. Defendant 1 died on 18th December 1919. The plaintiff took possession of the property in execution in 1918. One of the sons of the original defendant 1 died on 3rd March 1920. On 17th December 1920, the plaintiff made an application to the Court for substitution of the heirs of the deceased defendant 1 and also that of his deceased son Manmathanath Ray. In that application the petitioner did not state the date of the death of either of those persons and ha simply prayed for substitution of the heirs of the deceased persons without stating any fact that the suit had abated or that the application or substitution was made beyond time or that on account of any fact the petitioner was entitled to an extension of the period of limitation for making the application under Section 5, Lim. Act.
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