MANVI KHAN Vs. SUGRABI

JUDGEMENT

(1.) THIS miscellaneous appeal is directed against the order dated4.7.2000 in Civil Appeal No. 54/97 by First Additional District Judge, Waraseoni, dismissing the applications under Order 22 Rule 9 of the Code of Civil Procedure and under Section 5 of the Limitation Act.

(2.) IT appears that the appellant Abdulla Khan died on 18.4.1997 during pendency of the appeal. An application under order 22 Rule 9 of the Code of Civil Procedure along with an application under Section 5 of the Limitation Act was filed on 22.8.1997 for setting aside abatement and for condonation of delay in filing application for setting aside the abatement.

(3.) LEARNED counsel for the appellants submits that undisputably, appellant Abdulla Khan died on 18.4.1997. The appellants also examined two witnesses Yusuf Khan and Abdul Sattar in that regard as has been mentioned in the impugned order itself. There was no rebuttal of the said evidence. If that be so, the appeal abated after 90 days of the death of Abdulla Khan and an application for setting aside abatement could be moved within 60 days thereafter. Therefor, the application dated 22.8.1997 for setting aside abatement was within limitation.