RAMGOPAL & ORS Vs. VENIBAI & ANR

JUDGEMENT

(1.) This MCC has been filed by the legal heirs of the appellants of first appeal No.217/2006 under Order 22 Rule 3 and 9 read with Section 151 CPC for restoration and substitution of the legal heirs of the appellants alongwith an application (I.A.No.2442/2010) under Order 22 Rule 2 read with Section 151 CPC for setting aside the abatement and application (I.A.No.2443/2010) under Section 5 of the Limitation Act for condonation of delay.

(2.) Brief facts which are not in dispute in this case are that appellants Ramgopal and Saligram had filed first appeal No.217/2006 against respondents Venibai and Saroj Gupta challenging the judgment and decree dated 13.3.2006. It has come on record that counsel for respondents Saroj Gupta had filed an application on 28.7.2008 and submitted that since appellant No.2-Saligram expired on 12.11.2007 and prior to that respondent No.1-Venibai had expired on 24.2.2007, therefore, the appeal has abated. Despite such intimation, no steps were taken by the appellants, as a result vide order dated 27.8.2008 this Court dismissed the appeal as abated.

(3.) Learned counsel for the appellants submits that there is delay in filing the application for setting aside the abatement proceedings for the reason that after death of Saligram, Ramgopal had also passed away on 15.3.2009. The counsel for the appellants had sent several letters for substitution of legal heirs of Saligram, but according to the averments made in the application, such letters were not received by the present applicants, and therefore, they could not file appropriate application for substitution of legal heirs and thereafter setting aside the abatement proceedings. It is further mentioned that on 10.2.2010 counsel at Pichhore had informed applicant No.2 about the order passed by this Court. Thereafter, applicant No.2 contacted his counsel at Gwalior on 11.2.2010 and filed the application for setting aside the abatement proceedings. It is also submitted that legal heir of Venibai, namely Smt. Saroj Gupta is already on record and there is no other legal heir of Venibai, and therefore, the first appeal could have been declared to have abated only to the extent of Saligram and complete first appeal should not have been dismissed for want of substitution of legal heirs having been abated.