BHAGWAN DAS Vs. RAMSAHAI

JUDGEMENT

(1.) I.A. No. 13984/2011, an application under Order 22 Rule, Code of Civil Procedure, 1908 for setting aside the abatement of appeal qua respondent No. 2, who expired on 26.4.2011. It is contended on behalf of appellant that the knowledge of death of respondent No. 2 Kamal Kumar could be gathered through communication made by the Counsel vide application under Order 22 Rule 10A, CPC on 27.6.2011. It is further contended that except the information there were no details regarding legal representatives of respondent No. 2 and the appellants only after gathering the information and the details of the legal representatives of respondent No. 2 contacted the lawyer in second week of November 2011. By that time the period having expired for filing an application under Order 22 Rule 4 CPC has led to abatement of appeal. It is contended that the non-filing an application within the time stipulated from the date of knowledge was because of the time taken to collect the details regarding legal representatives of respondent No. 2.

(2.) Though the application has been opposed at by respondent Nos. 1, 3, 5, 6 and proposed legal representatives of respondent No. 2; however, taking into consideration the fact that appellants for the first time came to know about the death of respondent No. 2 on 26.4.2011, vide application under Order 22 Rule 10A C.P.C., wherein there was no details of the legal representatives surviving respondent No. 2, some time must have got consumed in searching the name of legal representatives. It cannot, therefore, be presumed that the appellants were diligent in taking steps to bring the legal representatives on record.

(3.) In view whereof the application under Order 22 Rule 9 CPC deserves to be and is allowed and abatement of appeal qua respondent No. 2 is set aside. Consequently, I.A. No. 13983/2011 an application for condonation of delay in filing the application under Order 22 Rule 9 CPC, I.A. No. 13984/2011, and I.A. No. 13989/2011 an application under Order 22 Rule 4 for substitution of legal representatives of the respondent No. 2 are allowed.