Ignorance of the respondent's death, without negligence or responsibility on the part of the petitioner, is sufficient cause to set aside an abatement.

Alfred Henry Lionel Leach, C.J.

1. This is an application for an order excusing delay in seeking to have the abatement of Appeal No. 399 of 1931 set aside and for an order setting aside the abatement. The petitioner is the Secretary of State for India in Council, acting through the Collector of West Godavari District. It appears that the respondent died on the 18th September, 1935, but the learned Government Pleader did not become aware of his death until the 4th Of May this year, that is, two days before the Court closed for the long vacation. The learned Government Pleader promptly communicated with the Collector, who on the re-opening of the Court on the 15th July filed the present application. The learned Advocate for the respondent does not contend that there was any delay in filing the application after the news of the death had been received, but he does contend that the Court should not set aside the abatement. His argument is that ignorance of the death of the respondent is not sufficient to support the application.

2. It has been proved to our satisfaction that neither the Collector nor any Government Official concerned with this appeal was aware of the death of the respondent until May of this year, and that being so we consider that the petitioner is entitled to have the abatement set aside under the provisions of Order 22, Rule 9. It is not incumbent upon an appellant to make periodical inquiries as to whether the respondent is alive. We are in entire agreement with the observations in Lakshmi Chand v. Behari Lal I.L.R. (1931) All. 280 where it was said that there was no justification for holding that ignorance of the death, in the absence of any negligence or other act or omission, for which the applicant can be held responsible, was not sufficient cause within the meaning of the Limitation Act. A decision to the same effect was given by the Calcutta High Court in Rajani Kanta Roy v. Raja Jyoti Prosad Singh Deo (1922) 27 C.W.N. 710.

3. Here it has not been contended that there has been any negligence or any act or omission on the part of the petitioner which would prevent him from having the benefit of Section 5 of the Limitation Act. For these reasons we excuse the delay and set aside the abatement.