TMI Blog1952 (7) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... plication prepared for the legal representatives of the deceased respondent in the appeal to be substituted and in the body of that application they stated the necessary facts. The facts stated were that the respondent, Sreedam Chandra Mullick, had died interstate on April, 13 last and that the information of his death had first been conveyed to the applicants by a letter, dated 26-4-1952, written to the solicitor for the petitioners by the solicitor for the deceased. The application went on to explain why it could not have been made earlier. It would have been necessary to consider the merits of the explanation if we had to decide whether an abatement ought to be set aside, but for the reasons I am presently going to state, decision of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandra v. Rarnani Mohan' ; -- 'K. P. Sinha v. Jatindra Nath' 41 Cal WN 4S2 (B), and lastly -- 'Nur Mohammed v. S. M. Solaiman' 49 Cal WN 10 (C). All these cases lay down that when the time limited for making an application expires on a day on which the Court or the Registrar, as the case may be, is not sitting an application made on the next day the Court is first sitting is an application made within time. Particular reference may be made to first of the three cases cited, which was a case of an application for substitution. The application had to be made before the Registrar and although the period of limitation had expired on 3-4-1937, it was made and moved on April 5, which was the first date after the close of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction did was to enable the applicant when he found the Courts closed on the last day of the limitation, to make an application on the day on which he next found the Courts open. But if, in the meantime, his remedy had become barred by reason of some other provision, the liberty given to him by Section 4 would avail him for nothing. It was pointed out that under the provisions of Order 22, Rule 4, Sub-rule (3), which were mandatory a suit or an appeal would abate whenever no application for substitution was made within the time limited by law. The time limited by law, it Was argued, was not extended in any way by Section 4, Limitation Act and, therefore, if in the present case no application had been made on or before 12-7-1952, when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g been made, the Court had refused it, the learned Judge had no jurisdiction to pronounce judgment on the award as he had done on 22nd December, inasmuch as the whole of that day was open to the party dissatisfied with the award for making an application to set it aside. Mr. Justice Panckridge repelled that contention. He held that although by reason of the provisions of Section 4. Limitation Act, it might be open to a party desiring to have the award set aside to make an application on 22nd December, nevertheless that section did not extend the period in cases where the last day of limitation was a day on which the Court was closed and, therefore, since no application for setting aside the award had been made within thirty days which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult could no longer be interfered with. 8. In my opinion, to take such a view would be to make the provisions of Section 4, Limitation Act wholly nugatory in most cases. 9. If Section 4 will not save limitation and will not, for purposes of limitation, maintain the 'status quo', it is difficult to understand what purpose it is intended to serve. To take the present case as an illustration, if, as contended by the learned Counsel for the respondent, an abatement took place on 13-7-1952, by reason of no application having been made on or before the lath, it is not intelligible of what benefit S, 4 would be to the applicants, if it did not make an application for substitution made on the 14th a valid application. The whole effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provision in Sub-rule (1) of Rule 4 of Order 22 is that where a defendant dies and the right to sue survives, the Court may cause the legal representative of the deceased defendant to be made a party on an application made in that behalf. Sub-rule (3) of that rule then provides that where within the time limited by law no application is made under Sub-rule (1) the suit shall abate. It is obvious that what Sub-rule (3) contemplates by the expression within the time limited by law is the time limited for making the application mentioned in Sub-rule (1). But it is precisely to the making of that application that Section 4, Limitation Act applies in cases where the period prescribed expires on a day on which the Court is closed. It is th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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