Judgement

RAGHUBAR DAYAL, J. : This appeal, by special leave, is directed against the order of the Calcutta High Court allowing the application of the appellant under sub-r. (2) of R. 9 of Order XXII of the Code of Civil Procedure, hereinafter called the Code, for the setting aside of the abatement of the suit it had instituted against the father of the respondents.

2. The suit was instituted on April 29, 1952, by the appellant corporation against Kalosashi Banerji, father of the respondents, to recover a sum of money due on a mortgage by deposit of title-deeds. The defendant contested the suit. Ultimately, a preliminary decree in the suit was passed ex parte on February 8, 1955. On an application presented on June 11, 1955, final decree was passed on June 23, 1955.

3. The first application for execution of the decree presented on August 30, 1955, was dismissed for default on October 4, 1955, on account of the decree-holder not taking any steps as a result of the report of the process server dated September 14, 1955, stating that the defendant Kalosashi Banerji had died.

4. The second application for execution of the decree against the defendant s legal representatives was presented on