Whether the court should aside abatement of suit on the ground that all the parties should be before the Court in partition suit?

 We think that the suit abated as soon as the Civil Procedure Code of 1908 came into force so far as regarded the applicant's father who was a party, and the application to set aside the abatement by adding the applicant as the legal representative, not having been made within sixty days, is barred by Article 171 of the Limitation Act of 1908. It is obvious, however, that in a partition suit all the parties should be before the Court. The suit has actually reached the stage of a commission to divide the property, and the applicant is a sharer. Nothing in the Code limits or affects the inherent power of the Court to make such orders as may be necessary for the ends of justice, and under Order Rule 10, the Court "may at any stage of the proceedings, order that the name of any person whose presence may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. We therefore order that the applicant be added as a defendant in the suit, being bound by all the proceedings up to date

Bombay High Court

Lakhmichand Rewachand vs Kachubhai Gulabchand on 10 April, 1911

Equivalent citations: (1911) 13 BOMLR 517

Bench: B Scott, Kt., Batchelor

Basil Scott, Kt., C.J.

1. We think that the suit abated as soon as the Civil Procedure Code of 1908 came into force so far as regarded the applicant's father who was a party, and the application to set aside the abatement by adding the applicant as the legal representative, not having been made within sixty days, is barred by Article 171 of the Limitation Act of 1908. It is obvious, however, that in a partition suit all the parties should be before the Court. The suit has actually reached the stage of a commission to divide the property, and the applicant is a sharer. Nothing in the Code limits or affects the inherent power of the Court to make such orders as may be necessary for the ends of justice, and under Order Rule 10, the Court "may at any stage of the proceedings, order that the name of any person whose presence may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. We therefore order that the applicant be added as a defendant in the suit, being bound by all the proceedings up to date.

2. costs in the cause.

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