VENKATAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) la. No. Iii is an application filed under order 22 Rule 3 read with Section 151 C.P.C. for substitution of the names of the heirs of the deceased-petitioner venkataiah who is alleged to have died on 17-7-1984 as mentioned in the application setting aside the abatement. Though in paragraph 2 of the application for substitution it has wrongly been mentioned as 17-7-1985. On enquiry being made from the application counsel the learned counsel for the applicant fairly stated that the death has taken place on 17-7-1984 and not on 17-7-1985. '17-7-1985' mentioned at paragraph 2 of la. No. Iii is a typing error.

(2.) the application for substitution la. No. Iii as well as other applications viz., la. Nos. I and ii have been moved in this court on 17-1-1995 i.e., almost 9 years 6 months after the date of death of the original petitioner. Under the law, the time prescribed for moving the application for substitution of the names of the heirs is 90 days and if no application is moved for substitution within ninety days, the abatement automatically takes place. No order of abatement needs be passed and in that case, the application for setting aside the abatement has got to be made within a period of sixty days from the date of abatement i.e., from the date of expiry period of ninety days. Thus the total period of 150 days expired long before the moving of the application.

(3.) in the application for setting aside the abatement and the application under Section 5 of the Limitation Act, for condonation of delay, it has been stated as hereunder: "during the pendency of the above writ petition, the said venkataiah died on 17-7-1984. Subsequent to the death of petitioner venkataiah this Hon'ble court by its order dated 19-7-1985 was pleased to dismiss the petition. The order of dismissal came to the knowledge of the applicants only in the month of june, 1994 and after obtaining the certified copy one of the l.rs., viz., ramakrishnaiah has filed writ appeal No. 2560 of 1994 (lr) before the division bench of this Hon'ble court, challenging the order passed in the above writ petition". The division bench dismissed the writ appeal with the observation that: "the writ petition was disposed of after the death of the petitioner. If that is so, then the petition stands abated. Therefore the proper course for the appellant will be to approach the learned single judge with an application to set aside the abatement and to bring the legal representatives of the deceased petitioner on record". Therefore, the applicants' case is, that after obtaining the copy of the order of the division bench and after making suitable arrangement, they moved this application as per the directions given in the writ appeal.