BHIKAM SINGH Vs. MOHAN SINGH

JUDGEMENT

(1.) JUDGMENT Counsel heard on application u/O XXII rule 4 C.P.C. Shri Sharma makes a serious objection to the effect that when once on 11.10.91 this Court dismissed the appeal as abated, the abatement could not have been set aside and the appeal could not have been restored by the Court order dated 23.10.1991 without notice and hearing the respondents and the legal representatives.

(2.) SHRI Jain submitted that the order of abatement was passed without notice and in the absence of the respondents. When the appellant brought to the notice of the Court that one of the legal representatives, Kanchansingh is already on record, the appeal could not have been dismissed as abated. The order of abatement was set aside, fixing the case fur hearing on application u/O XXII rule 4 C.P.C.

(3.) AFTER hearing counsel, I am of the opinion that neither the appeal can be dismissed as abated nor the application u/O XXII rule 4 C.P.C. deserves to be dismissed. It is not denied that Kanchansingh is one of the sons of the deceased Mohansingh, who sufficiently represents the estate of the deceased, therefore, application to bring other legal representatives on record cannot be dismissed as for that no limitation is prescribed and, therefore, the appeal cannot be dismissed as abated, that is the consistent view of this Court, if any authority is needed, see 1991 (I) MPWN Note 149 (Indirabai v. Viththal Rao). Besides, the appellant is a rural rustic residing in interior of the village and was not aware of the legal procedure that after the death of the said respondents, the legal representatives of the said respondent are to be substituted. In any case, I am of the opinion that there was a sufficient cause to the appellant for not making an application for substitution of legal representatives in the prescribed time. For that I place reliance on a decision of the Supreme Court in the case of Sital Prasad Saxena (dead) by Lrs. v. Union of India and others, reported in AIR 1985 SC 1. Accordingly, the application is allowed. The legal representatives be substituted within a week. As the appeal is of 1 Win, it will be listed for final hearing in the first week of May, 1994. 1991 (2) MPWN 149 and AIR 1985 SC 1 relied on.