PREM NARAIN Vs. GANGA RAM

JUDGEMENT

(1.) THIS is an application in revision under section 115 of the Code of Civil Procedure. The brief facts are these. Ganga Ram and twenty other persons filed a suit for declaration and injunction. During the pendency of the suit Paras Ram plaintiff no. 2, died on 6-10-1971 and Triveni, plaintiff no. 18, died on 4-9-1971. No application was given for substitution of their heirs and legal representatives within the period of 90 days. However, within five months of the date of death of Triveni an application was given for substitution in which in regard to Paras Ram it was stated that he had left behind him his brothers Kandarp Narain and Udai Narain as his heirs and legal representatives and they were already parties to the suit. Apart from that it was also alleged that Paras Ram had made a gift of his properties in their favour. So far as Triveni was concerned, substitution of his legal representatives was prayed for. In this application, however, the dates of death of these two persons were not mentioned.

(2.) THE trial court after recording the evidence given by the parties held that Paras Ram had died on 6-10-1971 and Triveni on 4-9-1971 and being of the view that since an application for substitution of legal representatives had not been made within 90 days of the death nor any application had been given for setting aside the abatement this application was not maintainable and the suit abated as a whole, ordered accordingly.

(3.) IN the instant case also in the application for bringing the legal representatives on record the date of death of Triveni was not given. There was no prayer for extension of time also. That application, therefore, could not be treated as an application to set aside the abatement. The order of the appellate court, therefore, in so far as Triveni is concerned cannot be sustained.