BHONGLU Vs. BAISAKHIN BAI

JUDGEMENT

(1.) THE important issue involved in this appeal is whether on death of one of the joint decree -holder during the pendency of appeal, the appeal will abate wholly or partly in absence of his legal representative brought on record?

(2.) THIS is Miscellaneous Appeal under Order 43 Rule 1(k) of the Civil Procedure Code, 1908 (in short "CPC") by appellants/defendants, by which, their two applications; firstly, for bringing the legal representatives of appellant/defendant No. 3 - Anandram and secondly, for bringing the legal representatives of respondent/plaintiff No. 3 - Jagatram has been rejected by the Lower Appellate Court by its order dated 10/05/2001 passed in Civil Appeal No. 38 -A/1998.

(3.) MR . Manoj Paranjpe, learned counsel appearing for the appellants/defendants would submit that the Lower Appellate Court has rejected the application for substitution and application for condonation of delay filed for bringing the legal representatives of deceased defendant No. 3 - Anandram merely on the ground of non filing separate application under Order 22 Rule 9 of CPC for setting aside abatement. He would further submit that the application under Section 5 of the Limitation Act, though filed as an application for condonation of delay, but in fact the same was an composite application under Order 22 Rule 9 of CPC for setting aside abatement and for condonation of delay under Section 5 of the Limitation Act, therefore, the order of the Lower Appellate Court rejecting application for substitution of deceased appellant/defendant No. 3 - Anandram is bad and liable to be set -aside. He would further submit that the order rejecting application for substitution of deceased respondent/plaintiff No. 3 - Jagatram is liable to be set -aside, as appeal has not abated in toto.