PRABHUDAS V CHAUDHARY Vs. SWAMINARAYAN TRUST SIDHPUR

JUDGEMENT

(1.) This revision application is directed by the heirs and legal representatives of original defendant-appellant in Regular Civil Appeal No.114/86 pending in the Court of learned Assistant Judge, Mahesana against the order of the first appellate court dated 15th July, 1998 rejecting the application Ex.35 filed under Order 22 Rule 3 and Order 6 Rule 17 of C.P.C. for substitution of heirs and legal representatives of deceased appellant.

(2.) Learned counsel for the petitioners submitted that the learned first appellate court has committed serious illegality in not condoning the delay which is caused in filing of the application for setting aside of the abatement of the application. Relying on the decision of the Apex Court in the case of State of M.P. vs. S.S. Akolkar reported in AIR 1996 SC 1984 and the decisions of this Court in the case of Mohatta Bros. vs. Sheth Chaturbhujdas reported in 1981 GLH 30 and in the case of Matuben S. Sejpal vs. Anantbhai Tekchand reported in 1995 (1) GLR 351 contended that in the matter of substitution of legal heirs and representatives of deceased party in the appeal or the suit, as the case may be, the courts may take liberal view and delay, if any, caused in filing of the application should be liberally condoned.

(3.) On the other hand, learned counsel for the respondent contended that the applicants have failed to make out any case of condonation of delay caused in filing of the application for setting aside of the abatement. In support of this contention, he placed reliance on the decision of the Apex Court in the case of State of Gujarat vs. Sayed Mohd. Baquir El Edross reported in 1981 (4) SCC 1. It is further contended that under the impugned order, the learned first appellate court rejected the application of the applicants for setting aside of the abatement as well as for condonation of delay caused in filing thereof. The order of rejection of the application for setting aside of the abatement is appealable under Order 43 Rule 1 of C.P.C. and as such this revision application is not maintainable. Carrying this contention further, learned counsel for the respondents contended that the consequence of dismissal of the application for condonation of delay caused in filing of the application for setting aside of the abatement is the dismissal of the application for setting aside of the abatement and in challenging that order, the applicants could have also raised a ground in the memo of appel against the order of the Court rejecting the application for condonation of delay caused in filing of the said application.