UNION OF INDIA Vs. MAI DAYAL AGARWAL

JUDGEMENT

(1.) Respondent No. 1 who was the sole contesting respondent (respondent No. 2 being the arbitrator) died on the 12th September, 1976. This fact was intimated by Shri J. P. Gupta counsel for the decree-holder. Mai Dayal, to Shri H. S. Dhir, counsel for the judgment-debtor in the execution proceedings. Shri J. P. Gupta also got substituted the names of two legal representatives of the deceased, Mai Dayal, in the execution proceedings, 0n^l9th January, ' 1977, therefore, Shri H. S. Dhir, counsel for the Union of India, came to know firstly, that Mai Dayal died on 12th September, 1976, and secondly, that tWo persons had been substituted as his legal represenatives in the- execution proceedings.

(2.) On this knowledge, the learned counsel, Shri H. S. Dhir, could have straightway made an application in this appeal as the appellant staling that respondent No. 1 was dead and according to the information given by Shri J. P. Gupta, counsel for the deceased respondent and subsequently for his legal representatives, he had left two legal representatives, whose names were given in the execution proceedings. This information was sufficient. Shri Dhir says that he could not have made such an application without an affidavit and the affidavit had to be sworn by the representative of the Union of India. While such a procedure may be normal, in the peculiar circumstances of the present case, in our view, Shri Dhir could himself have made both the applications, namely, (1) for bringing the legal representatives on record, and (2) for setting aside the abatement of the appeal which had taken place on the expiry of 90 days from 12th September, 1976. No affidavit was needed.

(3.) Instead, Shri Dhir wrote to the department and ultimately filed an application for setting aside the abatement on 7th February, 1977. He contends that under Article 121 of the Schedule to the Limitation Act he had 60 days to make the application. The period of limitation would have expired on the 9th February, 1977. His application for setting aside the abatement was therefore, within time. This argument is unacceptable.