MODI, J.—An interesting question of law has been raised before us in this appeal on behalf of the legal representatives of the deceased respondent Mst. Parwati Devi that this appeal has abated under Order 22 of the Code of Civil Procedure and should, therefore, be dismissed as such. The question arises in the following circumstances:

2. Mst. Parvati Devi widow of Navneetlal brought the suit in forma pauperis, out of which this appeal arises, against the defendant State for recovery of damages amounting to Rs. 20,000/- under the Fatal Accidents Act (No.13 of 1855) (hereinafter called the Act). It is sufficient to state for our present purposes that the case of the plaintiff was that her husband Navneetlal was employed as a clerk in the office of the Executive Engineer, Public Works Department at Bhilwara, and while he was travelling on official business in truck No.RJE 131 belonging to the State on the 19th of May, 1952 it caught fire as its engine was defective and some petrol tins were allowed to lie therein which also caught fire and as a result thereof the said Navneetlal had to jump out of the truck and in so doing he struck against a stone and got killed almost instantaneously.

3. The defendant State contested this suit on a number of grounds with which it is unnecessary to dwell at this stage. This suit was decided by the District Judge, Pratapgarh by his judgment dated the 31st of August, 1957 and a decree was passed in favour of the plaintiff Parwati Devi against the defendant State to the effect that the latter shall pay to the plaintiff Rs. 14,760/- together with the costs of the suit. The State thereupon filed this appeal on the 5th of November, 1957. When it came up for hearing on the 12th of January, 1965, it was brought to the notice of the Court that Mst. Parwati Devi, the sole respondent in the appeal had died as early as the 14th of April, 1960 and that her legal representatives had not been brought on the record and substituted for her within the time permitted by law, and consequently this appeal had abated and must be dismissed as such. The learned Government Advocate on behalf of the State prayed for time to be able to meet this objection which was granted and he filed his reply on the 2nd of March, 1965. It is contended therein that the suit brought by the plaintiff, even though it had been brought in the name of Mst. Parwati Devi alone, was of a representative character and, therefore, the provisions of Order 22 of the Code of Civil Procedure would not be applicable to it and the appeal could be continued after the names of the other persons, on whose behalf Mst. Parwati Devi had brought this suit and whose representative she was, were brought on the record. It was contended alternatively that even if the Court came to the conclusion that this appeal had abated, the date of the death of the plaintiff became known to the defendant appellant only when learned counsel for the legal representatives of the deceased Parwati Devi had brought it to the notice of the Court, that is, on the 12th of January, 1965 and not earlier and consequently the abatement be set aside and the delay in making the application for the substitution of her legal representatives be condoned and their names be substituted in place of the deceased.

4. It is in these circumstances that we are called upon to decide whether this appeal has abated. In support of his submission that an abatement of the appeal has irretrievably taken place as a result of the legal representatives of the deceased Parwati Devi not having been brought on the record within the time allowed by law from her death which admittedly took place on the 14th of April, 1960, learned counsel has placed strong reliance on the decision of their Lordships of the Supreme Court in State of Punjab vs. Nathu Ram(l). This was a case under the Punjab Land Acquisition (Defence of India) Rules, 1943. There was certain land which was the joint property of two brothers and which was acqu

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