Ryves and Gokul Prasad, JJ.
1. This purports to be an application to set aside an order of abatement. It appears that one of the respondents died in March, 1921, and an application was put in by the learned vakil for the applicant after ninety days had expired. The learned vakil in the application stated that the appeal as against the deceased respondent had abated and he applied for an order under Order XXII, Rule 9(2). The matter came before a learned Judge of this Court who was of opinion that the application was premature inasmuch as there was no order of the Court declaring the appeal to have abated. As, however, a learned Judge of this Court in Lachmi Narain v. Muhammand Yusuf (1990) I.L.R. 42 All. 540, was of opinion that on the expiry of ninety days after the death of a respondent, if no application was made within ninety days to bring his representatives on to the records, the appeal automatically abated and it was not necessary that a format order should have been passed to that effect before an application under Order XXII, Rule 9(2) could be made. As the learned Judge before whom this application first came, doubted the correctness of the ruling, the matter was referred to two Judge and comes before us. It seems to us that the point is concluded by the decision in Secretary of State for India v. Jawahir Lal (1914) I.L.R. 36 All. 235, and we think that that decision was correct. In Order XXII, Rule 9(2), kit is stated that the plaintiff may apply for an order to set aside the abatement or dismissal. It is quit obvious that a suit cannot be dismissed automatically. It seems to us therefore that a format order declaring that a suit or an appeal has abated, id necessary before dismiss this application and order the appeal to be put up in the ordinary course. In order to save time we direct that the appeal be put up to-morrow before us for orders.
2. A formal order declaring the appeal to have abated as against one of the respondents was than passed:
Ryves and Gokul Prasad, JJ.
3. We are informed that in this case one of the respondents died more than three months ago and no steps have been taken to bring his legal representatives on the record. We declare this appeal to have abated as against him.
4. And the appellant presented a fresh application to set it aside:
Ryves and Gokul Prasad, JJ.
5. This application has been presented by Mr. Mithal to-day, Mr. N. Upadhiya who represents the respondents is present. Let this matter be put up at an early date for disposal along with the previous application for setting aside the order of abatement disposed of by our order of yesterday.
6. In the end the order of abatement was cancelled:
Ryves and Gokul Prasad, JJ.
7. This is an application to set aside an order of abatement in an appeal pending in this Court. We are satisfied from the affidavit filed on behalf of the appellant that sufficient cause has been made out to explain why there was a delay in bringing the heirs of the deceased Babu Lakshmi Das on to the record. We therefore allow the application, set aside the order of abatement and direct that the appeal be put up in the ordinary course. We make no order as to costs.