PRADEEP JAIN Vs. DILEEP KUMAR

JUDGEMENT

(1.) Briefly stated relevant facts are that one Gokulchand preferred regular Civil Appeal No. 7-A/97 against the respondents in the Court of District Judge Guna. During pendency of the appeal, Gokulchand died. An application under Order 22 Rule 3, CPC was submitted by the L.Rs., which was dismissed on 24-8-1999 on account of being barred by limitation, since the application was not accompanied by a prayer for condonation of delay under Section 5 of Limitation Act.

(2.) Thereafter, another application under Order 22 Rules 9 and 11 read with Section 151 of CPC was submitted for setting aside abatement, which has been dismissed by the Court below on the ground that once the application under Order 22 Rule 3 of CPC is dismissed, another application before the same Court is not maintainable.

(3.) Shri S.K. Shrivastava, learned Counsel for the appellants submitted that although provisions of Order 22 Rule 3 and Rule 9 of CPC are interlinked but scope of the provisions is altogether different. Despite dismissal of the application under Order 22 Rule 3 of CPC, an application under Order 22 Rule 9, CPC for setting aside abatement ought to have been considered on its own merits.