RAMASAMI PADAYACHI Vs. PAVADAI SAMI PADAYACHI DIED

JUDGEMENT

(1.) Consequent upon the death of Pavadaisami Padayachi, the 1st respondent in both the second appeals, viz., S.A. Nos. 1663 and 1664 of 1982 on 22.4.1990, this petitions have been filed for bringing his legal representatives on record, for setting aside the abatement and for excusing the delay in filing the petition to set aside the abatement. The delay in each case is very much inordinate, it being 1871 days. The relevant petitions to excuse the said delay are C.M.P. No. 16385 of 1995 in S.A. No. 1663 of 1982 and C.M.P. No. 16386 of 1995 in S.A. No. 1664 of 1982. S.A. No. 1683 of 1982 is against the concurrent decree passed by the courts below for specific performance of the suit sale agreement, in favour of the said Pavadaisami Padayachi S.A. No. 1664 of 1982 is against the concurrent dismissal of the suit for redemption filed by the original mortgagor and the alleged subsequent purchasers against the said Pavadaisami Padyachi.

(2.) The averments in the affidavits filed in support of the abovesaid C.M.P. Nos. 16385 and 16388 of 1995 are almost same. The said affidavits have been filed only by the 6th appellants in S.A. No, 1663 of 1982, though it is stated that, the affidavit is on behalf of the other appellants-petitioner. (On the whole, there are seven appellants in S.A. No. 1663 of 1982 and three appellants in S.A. 1664 of 1982). The relevant allegations in the said affidavit are as follows:

(3.) First of all it must be noted that apart ,from the fact that the above said affidavit is vague in many respects, it has been filed only by the 6th appellant, though it is stated to be on behalf of the other appellants also. But, the question is when actually, each of the" appellants came to know of the death of the abovesaid Pavadasisami Padayachi. No doubt it is stated in the affidavit "we came to know only when the same was informed by our counsel". [Emphasis supplied]. But, normally all the appellants cannot be said to come to know of the abovesaid death only at a particular time, all together. That apart,' it is not stated in the affidavit when actually the death was informed by their counsel and when actually the other side counsel informed about the death to their counsel, it is also not stated specifically when actually their counsel requested other side counsel to furnish the particulars of legal heirs of the deceased.