ALAMCHAND Vs. ASHOK KUMAR

JUDGEMENT

(1.) This first appeal has been filed under Section 96 of CPC arising out of judgment and decree dated 21/10/2011 passed by First Additional District Judge, Gwalior in Civil Suit No.37A/2010. IA No.3602/2019 has been filed for bringing the legal representatives of appellants no.1 and 2 on record. IA No.3607/2019 has been filed under Order XXII Rule 9 CPC read with Section 5 of the Limitation Act.

(2.) It is the case of the appellants that the appellant no.1, namely, Alamchand Soni has expired on 29/9/2013, whereas appellant no.2, namely, Omprakash Soni has expired on 28/12/2018. It is submitted that the appeal would not stand abated because the estate of the deceased/appellants is already being represented by their stakeholders/appellants. It is further submitted that the appellants as well as the respondents have already entered into a compromise and, therefore, even if it is held that the appeal has abated due to non- bringing the legal representatives of appellants no.1 and 2 on record, then the abatement may be set aside. It is further submitted that the delay in filing the application for setting aside abatement may also Alamchand and others Vs. Ashok Kumar and others condoned.

(3.) The application filed by the appellants is not opposed by the counsel for the respondents. Accordingly, IA No.3607/2019, which is an application for setting aside abatement as well as for condonation of delay in filing the application under Order XXII Rule 9 CPC is hereby allowed. The delay in filing the application for setting aside abatement is condoned and the abatement of appeal, if any, is hereby set aside. As a consequence thereof, IA No.3602/2019 is hereby allowed. The legal representatives of appellants no.1 and 2, as mentioned in the application, are brought on record.