Abatement liberally seen when no gross law and negligence
Abatement on the death of a party to a legal proceeding follows automatically unless his heirs and heirness are substituted within the prescribed time. To substantiate the legal representative of the deceased party on setting aside abatement,the applicant is required to prove that he had no earlier knowledge about the death of the deceased party and he had no laches and negligence in making the prayer for setting aside abatement.In view of the fact that abatement is essentially a technical default,which may deal a shattering blow to his claims,the court usually inclined to consider an application for setting aside abatement liberally, unless there are gross Laches and negligence on the part of the applicant.
Guruknath Shib Thakur,VS Md Fatikuddin Mondal,19 BLD(1999)-570,7 BLT(1999)-HCD-202,52 DLR(2000)-541,14 BLD(AD)-203,26 DLR(SC)-68
Section 10
Stay order take effect as soon as it is pronounched and not from the time it is communicated to the executing court. 21 DLR note XV111.
Order of refusal for stay of execution of the decree when passed by the executing court falls with in 147 of the Code of Civil procedure Borhan-VS-Nagendra DLR 410
High Court passed an ad-interim stay order on 14-02-52. Executing court issued writ of D. P on 14/02/52 judgment debtor applied 15 day stime with copy of advocate”s letter on 16.02.2005 judgment debtor applied for 15 days time with copy of Advocates letter on 16.02.52. Executing court orders stay if possession is not allready delivered at 2 PM on 16.02.52. Peon delivered p[ossession at 1 pm on 16.02.52. High stay order received on 21.02.52. On the basis of the stay order judgment debtor dispossesed D. H High court appeal dismissed on 01.07.52. D. H filed fresh execution for D P on 20.08.52. held the second application does not lie order for D P and D P not vopid –they are irregular remedy is to applied for setting aside the previous order for D P. as invalid held further the authiority of the pean for D P can be taken away by communicating the recall order.Md- Vs Jarmin 7 D L R 82(86)
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