Ignorance of the death of a party is not a sufficient cause for setting aside the abatement of an appeal, especially when the appellant had a period of 150 days to take necessary steps to continue the appeal.

Tek Chand, J.

1. This is a Letters Patent appeal on behalf of the Union of India from the judgment of a learned Single Judge of this Court. A preliminary objection has been raised, namely, that the appeal had abated long time ago and no application within time was filed for setting aside the abatement. In this case the respondents are Radha Kishan Sohan Lal, a joint Hindu family firm, who was being proceeded through Sohan Lal as the karta. The other members of the joint Hindu family had not been impleaded. On 6th of July 1959 Sohan Lal died during the pendency of the Letters Patent appeal. On 21st of August 1959 the fact that Sohan Lal had died was brought to the notice of the opposite party at the hearing. The Divisional Bench consisting of Bhandari C. J. and Falshaw, J. by their order dated 21st of August 1959 stated that it appeared that Sohan Lal had died recently and Mr. H. S. Doabia for the Union of India asked for an adjournment to implead the legal representatives of Sohan Lal deceased. The case was consequently adjourned.

On 10th of March 1960 an application was filed under Order 22, Rule 4 and Order 32, Rule 3 of the Code of Civil Procedure for bringing on record the legal representatives of Sohan Lal deceased. It was stated that Sohan Lal had left six heirs named in the application and it was prayed that they may be brought on the record and the abatement which had already resulted be set aside. This application was accompanied with an affidavit of Shri Kidar Singh, D. S. (Deputy Superintendent), Central Excise and Customs, Ludhiana, in which he stated: "I solemnly declare and affirm that the date of death of Seth Sohan Lal of M/S Radha Kishan Sohan Lal first came to the knowledge of the undersigned on 30th October 1959".

The fact, however, is that the matter was brought to the notice of Shri H. S. Doabia, learned counsel who appeared for the Union of India, on 21st of August, 1959. Beyond the above-quoted para from the affidavit of Shri Kidar Singh, no reason whatsoever has been assigned why he or any other representative of the Department who was interested in the litigation remained in ignorance and what factors led to their not knowing that Sohan Lal had died. The application dated 10th of March, 1960 is hopelessly time-barred. It was made more then eight months after the death of Sohan Lal when not only the appeal had long abated but the limitation for the application to set aside abatement had long expired. To avoid abatement the application should have been made within ninety days of the death of Sohan Lal and in order to get the abatement set aside the application should have been made within sixty days of the abatement. The appellant had a period of 150 days altogether for this purpose. There is no explanation of any kind forthcoming as to why the application was not made earlier. In a recent decision of a Full Bench of this Court, Firm Dittu Ram Eyedan V/s. Om Press Co. Ltd., Fazilka, AIR 1960 Punjab 335, this matter was examined in detail by me, and the following observations are relevant for deciding this case: "The law casts a duty upon the plaintiff or the appellant, as the case may be, to bring on the record legal representatives of a deceased defendant of respondent where death takes place during the pendency of the lis in order that no decrees may be passed against deceased persons. If for failure to bring legal representatives on the record within ninety days, the suit or the appeal abates, it is for the applicant to get the abatement set aside by making an application within sixty days on proof of sufficient cause.

Where he allows a period of 150 days to expire from the death of the deceased, he has to satisfy the Court of the existence of circumstances contemplated by S. 5 of the Limitation Act justifying condonation of delay. The reason is that a valuable right accrues to the party against whom suit has abated and the order of abatement should not be set aside as a matter of course or fo