RAGHUVEER PRASAD Vs. VISHNU DUTT

JUDGEMENT

(1.) Heard Sri Ateeq Ahmad Khan, holding brief of Sri Tarun Kumar Malviya, learned counsel for the plaintiffs-appellants and Sri S.N. Mishra, learned counsel appearing for the heirs and legal representatives of the deceased respondent.

(2.) This appeal arises from a suit for cancellation of a sale deed.

(3.) In the appeal the sole defendant-respondent Vishnu Dutt, died on 29.8.04 which is not disputed and is established by the death certificate on record. However, plaintiffs-appellants failed to file any application to get his heirs and legal representatives substituted. The appeal as such stood abated automatically. However, the heirs and legal representatives of the deceased sole defendant-respondent on 16.9.06 moved an application alleging that the defendant-respondent has died on 29.8.04 and in the absence of any application to get his heirs and legal representatives substituted the appeal be directed to be abated. The copy of the said application was duly served upon the counsel representing the plaintiffs-appellants. The above application was not opposed by filing any counter affidavit and at the same time no application either for SETTING aside abatement was moved or any application for condoning the delay and getting the heirs and legal representatives substituted was filed. Accordingly, when the above Abatement Application No. 19041 of 2006 was listed before the Court, an order of abatement was passed on 18.7.07. The order reads as under:-