JUDGMENT

Scott-Smith, J. - This is a first appeal from the order of the District Judge of Hoshiarpur, rejecting an application for the readmission of an appeal dismissed in default under Order 41, Rule 17, Civil Procedure Code. The First Court passed a decree in favour of Thakar Das and two other plaintiffs. Thakar Das died while the suit was pending in the First Court and Shankar Das was impleaded as his legal representative. In the appeal filed before the District Judge Shankar Das was made a party but when the appeal was filed in this Court Thakar Das' name was shown instead of that of Shankar Das. It appears, however, that in the District Judge's order rejecting the application for re-admission of the appeal the name of Thakar Das appears, and not that of Shankar Das, and, therefore, there was certainly some excuse for the mistake made in the memorandum of appeal. When the appeal was first filed in this Court it was returned in order that a copy of the application for restoration of the appeal in the lower appellate Court and also a copy of the First Court's judgment should be filed. These were filed and they show the name of Shankar Das and not that of Thakar Das, and it is, therefore, contended by Counsel for the respondents that, if there had been due care and attention on behalf of the appellant and his Counsel, the mistake would have been corrected when the appeal was re-filed. I admit there was some remissness on the part of Counsel, but having regard to the fact that the original mistake arose on account of the mistake in the copy of the order appealed against, I think it should be overlooked and this Court should exercise its power of adding Shankar Das as respondent under the provisions of Order 41, Rule 20, Civil Procedure Code.

2. Another objection was raised to the effect that Hamun Khan, one of the defendants, had died and his legal representatives were not brought on the record within the statutory period. Hamun Khan was the lessee of the property claimed by the plaintiffs but he sold it to defendants Nos. 2 to 4. Ha was, therefore, only a pro forma party to the suit. Defendants Nos. 2 to 4 were substantial defendants in the case and they alone have appealed. They seek to have the plaintiffs' decree set aside and seek no relief against Hamun Khan. I, therefore, hold that ha is not a necessary party to the appeal. Mr. Kennaway, District Judge, remanded the case to the Trial Court for further enquiry under Order 41, Rule 25, Civil Procedure Code, on the 13th July, 1917. The case was postponed for some time owing to the war and the impossibility of getting the respondents served. The Trial Court reported that Badri Das respondent could not be served with notice and that the appellants also had not been appearing before it and asked the District Judge what course it should pursue. The District Judge on receipt of this report and without issuing notice to any party dismissed the appeal under Order 41, Rule 17 on the 13th May, 1920. It is contended on behalf of the appellant that this order was passed without jurisdiction inasmuch as no date was fixed by the District Judge for hearing the appeal. It appears from the record that the 13th May, 1920, was not fixed for hearing the appeal and that no notice was given to any party that the case would be taken up in the District Judge's Court. I must, therefore, hold that the order was passed without jurisdiction and is not justified by the provisions of the law.

3. A further objection is raised on behalf of the respondents that the application to the District Judge which was not made till some 8 months afterwards was barred by time. As, however, the appellants had no notice of the date in the District Judge's Court and the record does not show that they were informed of the dismissal, it appears that the limitation laid down in Article 168 of the 2nd Schedule of the Limitation Act should not apply. Mr. Rustomji in his Law of Limitation, Third Edition, at page 700 submits th