Research › Browse › Judgment

Supreme Court of India · body

1904 DIGILAW 5 (SC)

RAJ CHUNDER SEN v. GANGADAS SEAL

1904-03-02

LORD DAVEY, LORD ROBERTSON, SIR ARTHUR WILSON

body1904
Judgement Consolidated Appeals from two decrees of the High Court (March 20, 1900) affirming a decree of the Subordinate Judge of Chittagong (July 6, 1896). Rules nisi were obtained by the above-named plaintiff and the appellants in the second appeal to revive the appeals from the decree of July 6, 1896, against the executor of Abhoy Churn Chowdhry, a respondent who died on July 9, 1898. The rules were applied for in April and May, 1899, and on November 21, 1899, the High Court discharged them, holding that the applications for revival were barred under art, 175 (c) of the Limitation Act (see Act VII. of 1888), unless sufficient cause were shewn for the delay, and finding that no such cause existed. Thereafter the appeals came on for Law Rep. 31 Ind. App. 71( 1903- 1904) Raj C hunder Sen V. Gangadas Seal 5 hearing, and on a preliminary objection that they had abated under s. 368 of the Civil Procedure Code and could not proceed in the absence of the executor of the deceased respondent, the High Court held that, the suit being in substance one for the winding-up of a partnership business and for the taking of the accounts thereof, the decree settling the partnership account and giving effect to the settlement could not be set aside so long as Abhoy Churn was unrepresented, the more so as the decree was in his favour, and he had under it to receive a sum of money from some of the other partners. Cohen, K.C., and C. W. Arathoon, for the appellants, contended that the High Court was wrong in thinking that the case fell under s. 368 of the Civil Procedure Code; or, at all events, that the appellants in the second appeal, who were defendants, were not within the scope and meaning of that section. Reference was made to ss. 362, 388, and 582 of the Civil Procedure Code, ss. 32 and 33 of the Amendment Act of 1888, and to Act XV. of 1877, s. 5, and art. 175 (c); and it was contended, first, that the applications were not barred, and, second, that the appeals had not abated. Cowell, for the three Seal respondents, was not heard. The judgment of their Lordships was delivered by Lord Davey. 32 and 33 of the Amendment Act of 1888, and to Act XV. of 1877, s. 5, and art. 175 (c); and it was contended, first, that the applications were not barred, and, second, that the appeals had not abated. Cowell, for the three Seal respondents, was not heard. The judgment of their Lordships was delivered by Lord Davey. The only question on these consolidated appeals is whether the High Court at Calcutta was right in holding that the suit had abated, and the appeals to that Court could not proceed in the absence of a representative of one of the respondents who had died pending the appeals. The material facts are as follows The suit was in substance for taking the accounts and winding up the affairs of a partnership which had subsisted between the plaintiff and the several defendants to the suit. There were complicated questions as to the respective relations of the parties inter se. These preliminary questions were disposed of by the Subordinate Judge, and he thereupon directed the accounts to be taken by a Commissioner. Objections were taken to the report of the Commissioner, and in the result a final decree, dated July 6, 1896, was made by the judge, by which it was ordered (so far as material for the present purpose) that a sum of Rs. 9288 odd should be contributed in certain proportions by the plaintiff (appellant in the first appeal), the defendants Ramgati Dhur and Bissumbhur Poddar (appellants in the second appeal), and certain other parties, and that out of that sum a sum of Rs. 1740 odd should be paid to Abhoy Churn Chowdhry, one of the defendants, and other payments be made to other parties. The defendants Ramgati Dhur and Bissumbhur Poddar and the plaintiff respectively appealed to the High Court. The defendant Abhoy Churn Chowdhry died on July 9, 1898, leaving a will, probate of which was granted to his son Nagendra Lal Chowdhry on November 18, 1898. On April 27, 1899, application was made by the appellants in the second appeal for an order for substitution of the name of Nagendra Lai Chowdhry for the deceased defendant on the record. A similar application was made by the first appellant. On November 21, 1899, these applications were rejected on the ground that they were out of time and no sufficient cause had been shewn for the delay. A similar application was made by the first appellant. On November 21, 1899, these applications were rejected on the ground that they were out of time and no sufficient cause had been shewn for the delay. The substantive appeals came on for hearing on March 20, 1900, when the Court held that the appeals had abated, and could not, therefore, proceed. The present appeals are from the decrees then made. By s. 368 of the Civil Procedure Code, if any defendant dies before decree and the right to sue does not survive against the surviving defendant or defendants alone, the plaintiff may apply to have a specified person whom he alleges to be the legal representative of the deceased substituted for him, and the Court is thereupon to enter the name of such person on the record; but it is provided that when the plaintiff fails to make such application within the period prescribed, the suit shall abate, unless he satisfies the Court that he had sufficient cause for not making the application within such period. Law Rep. 31 Ind. App. 71( 1903- 1904) Raj C hunder Sen V. Gangadas Seal 6 By s. 582 the words "plaintiff," " defendant," and " suit" include an appellant, respondent, and an appeal respectively. By s. 66 of the Civil Procedure Code Amendment Act (Act VII. of 1888) the period of six months from the date of the death of the deceased defendant is the period prescribed for making an application under s. 368 of the Civil Procedure Code. It is not disputed that the right to sue did not survive against the other defendants alone, nor could it be successfully contended that the appeals could proceed in the absence of a representative of Abhoy Churn Chowdhry. But applications to substitute his legal representative for the deceased respondent were not made until after the expiration of the period of six months from that respondents death. The legal representative of Abhoy Churn Chowdhry was constituted nearly two months before the expiration of the period, and there was no apparent difficulty in making the application in proper time. The only question, therefore, could be whether the Court was satisfied that the appellants had sufficient cause for not doing so. No serious attempt was made for this purpose. In the circumstances, therefore, the Court had no option, and the present appeals are perfectly idle. The only question, therefore, could be whether the Court was satisfied that the appellants had sufficient cause for not doing so. No serious attempt was made for this purpose. In the circumstances, therefore, the Court had no option, and the present appeals are perfectly idle. Their Lordships will humbly advise His Majesty that they should be dismissed. The appellants will respectively pay the costs of them.