JUDGMENT

GOSWAMI, J.:—Civil Appeal No. 1868 of 1967. This is an appeal by certificate of the Allahabad High Court under Article 133 (1) (a) of the Constitution. The appellant is the plaintiff, the Municipal Board, Lucknow (hereafter briefly the Board). The Board instituted a Civil Suit being numbered 25 of 1953 in the Court of Civil Judge, Lucknow, on 4th March, 1953, against seven defendants. The Board prayed for a decree for accounts to be passed against the defendants after their rendering of accounts, a decree for such amount as may be found due or in the alternative a decree for the sum of Rs. 69,642/6/6 against defendants. The written statements were filed on behalf of defendants 1 to 3, 5 and 7. Defendants 4 and 6 admittedly migrated to Pakistan and their property by the custodian under the Administration of Evacuee Property Act, who was impleaded as defendant No. 7. 14 issues were framed and only the following two issues were taken up for preliminary hearing:

"Issue No. 6:

Is the suit not maintainable as alleged in paragraph 22(?) of the written statement of defendant No. 1? 1092

Issue No 9:

Is the suit on the ground of negligence barred by limitation?"

2. The Civil Judge answered both the issues against the Board. The High Court, in appeal, decided issue No. 6 in favour of the Board and we are not concerned with the same in this appeal. With regard to issue No. 9 the High Court set aside the judgment of the Civil Judge relating to defendants 1 to 3 and held that the suit was not barred by limitation against those three defendants under Section 326 of the U. P. Municipalities Act, 1916. The High Court, however, affirmed the decree of the Civil Judge in respect of defendant No. 5 - Mohd. Yusuf - and held that the suit was barred by limitation as against him under Section 326 of the aforesaid Act.

3. The Board had also made an application for review before the High Court with regard to two observations made in the judgment. The High Court accepted the review application with regard to the first observation complained of but declined to review the second observation. Mr. Dikshit, the learned counsel for the appellant now does not press his claim with regard to the second observation before us.

4. Mr. Andley, the learned counsel for the respondents 1 to 3, has raised a preliminary objection on the ground that the appeal has abated on account of the fact that Mohd. Yusuf, respondent No,. 5, died more than six years back and the application of the appellant for setting aside abatement of the appeal with regard to respondent No. 5 which was made on March 21, 1974, was dismissed by this Court on December 3, 1975. The learned counsel, therefore, submits that the whole appeal has abated on account of the above position.

5. We are, however, unable to agree that the question of abatement in this case would arise in view of the fact that even if the suit had been dismissed against defendant 5, the defendants 1 to 3 could individually be sued for rendering accounts and for recovery of the amount due from them. Whether they would be ultimately found by the Court to be liable for the plaintiff s claim, is a different matter and will be decided in the suit. There is. therefore, no substance in the plea that the appeal as a whole has abated on account of the death of Mohd. Yusuf.

6. Mr. Dikshit has drawn our attention to a factual inaccuracy in the judgment of the High Court in the following observation while dealing with Issue No. 9:

"As regards defendants Nos. 1, 4, 5 and 6, there is no dispute that they were servants."

7. Mr. Dikshit submits that there was dispute with regard to the fact of defendant No. 1 being a servant of the Board as will appear from Issue No. 1 itself which is in the following terms:

"Issue No. 1:

"Was the defendant No. 1 a servant or an agent of the plaintiff and was liable to render accounts."

8. Mr. Andley appreciated the point and does not controvert the inaccuracy of the statement in the judgment. We, therefore, find th