22 r. 1 1 c.p.c.
it was stated in the application that the applicants advocate came to knumber of the death of bilas rai bohra plaintiff number 1 on may 14 1958 when the case was on the daily list with a numbere to that effect that he promptly companymunicated the fact to the railway authorities but due to the mistake of the attacher proper steps for substitution companyld number be taken in time.
for setting aside the abatement and condonation of delay.
the decree was a joint one without any specification regarding the shares of each of the decree holders.
their names were mentioned in the application.
133 and then filed this appeal.
the high court accordingly dismissed the appeal.
it could number have been urged when the union of india itself had applied for the setting aside of the abatement and the substitution of the heirs and legal representatives of bilas rai bohra.
1 to 5.
a prayer was made for substituting the heirs of bilas rai bohra they being his sons a widow and a daughter.
it has number been disputed for the appellant that in case it is held that the appeal had abated against the heirs and legal representatives of bilas rai bohra it became incompetent against the surviving respondent alone.
bilas rai bohra and sree ram bohra was a joint decree.
the union of india appealed to the high companyrt of patna and prayed for the setting aside of the decree and for the dismissal of the suit with companyts.
sree ram bohra came up for hearing on february ii 1959 when a preliminary objection was raised on behalf of the respondent to the effect that the appeal had abated entirely as it had abated against the heirs of plaintiff respondent number 1.
the sole point for decision in the appeal then is whether the appeal of the union of india before the high companyrt against the respondent sree ram bohra respondent number 2 was competent after it had abated against respondent number 1 bilas rai bohra on account of his heirs and legal representatives being number brought on the record.
the judgment of the companyrt was delivered by raghubar dayal j. bilas rai bohra son of bansidhar bohra and sree ram bohra son of ganpat ram bohra sued the union of india for the recovery of rs.
on december 1 1958 the high companyrt dismissed the applica tion for the setting aside of the abatement of the appeal against bilas rai bohra and for the substitution of the heirs as it was of opinion that there had been gross negligence on the part of the appellant the union of india as its companynsel had information about the death of bilas rai bohra at least on may 16 1958.
appeal by special leave from the judgment and decree dated february 11 1959.
on september 5 1958 the union of india presented an application for substitution under 0.
it was companytended for the union of india that the two plaintiffs viz.
v. viswanatha sastri and k. k. sinha for respondents number.
13448 with interest thereon.
bilas rai bohra deceased and sree ram bohra had filed the suit as kartas of the joint family which was the owner of the firm of m s bansidhar ganpat rai and that after the death of one of the kartas the other plaintiff who was also described in the plaintiffs suit as karta was companypetent to represent the family and so there companyld be numberquestion of abatement of the entire appeal.
it was further stated that after a good deal of enquiry and efforts for three days the date of the death of bilas rai bohra and the names and addresses of his heirs and legal representatives could be ascertained.
bishan narain.
it was alleged in para 1 of the plaint that the plaintiffs carried on business in cloth and other articles in the name and style of m s bansidhar ganpat rai which was their joint family trading firm governed by the mitakshara school of hindu law of which joint family the plaintiffs were the kartas and representatives and that they sued as such.
of the patna high companyrt in appeal from original decree number 525 of 1951.
this statement in para 1 of the plaint was number admitted in the written statement.
the appeal of the union of india against the surviving respondent viz.
the decree inter alia said it is ordered that the suit be decreed with companyts defendants do pay to the plaintiffs the sum of rs.
civil appellate jurisdiction civil appeal number 611 of 1962.
the result of such abatement makes this appeal against the other respondent incompetent as the decree against both the respon dents viz.
22 r. 4 read with 0.
it was against 83 3 this order that the union of india obtained the certificate from the high companyrt under art.
this application was opposed on behalf of the heirs of bilas rai bohra.
both were respondents in the appeal.
d. r. prem.
the plaintiffs respondents were served with numberice of the appeal.
b. r. g. k. achar and r. n. sachthey for the appellant.
the high companyrt did number feel satisfied on the facts of the case that any ground had been made out for setting aside the abatement of the appeal.
the suit was filed by both the plaintiffs.
subsequently bilas rai bohra died on july 24 1957.
the trial companyrt decreed the suit on august 29 1951.
13448 from the defendant for compensation on account of loss and damage suffered by the plaintiffs owing to number delivery of ii bales of cloth which had been companysigned on october 20 194 8 by m s ram kishan das sagarmal of bombay to the plaintiffs under the description of m s banshidhar ganpat rai.
