ANOOP CHOUDHARY Vs. USHA BHARGAVA

JUDGEMENT

(1.) THIS order shall decide I. A. No 14251/07 filed by the appellant under Order 1 Rule 10 r/w Section 151 r/w Order 22 Rule 10 of CPC seeking permission to implead the legal heirs of deceased respondent No. 4 as respondents on record.

(2.) THE facts in brief of the case which are necessary to decide this I. A. are that the appellant initiated a suit for specific performance against respondent No. 1 and 2 on the basis of an agreement to sale dated 18. 8. 1974 executed by Shri Pyarelal Sharma, the father of the respondent No. 1 and 2. As per further contention after the death of Pyarelal Sharma the respondent No. 1 and 2 being his legal heirs sold the disputed property through registered sale deed dated 17. 12. 1981 to the deceased respondent No. 4 Sardar Harjinder singh. Initially the suit was filed only against respondent No. 1 and 2 but subsequently other respondents were impleaded as defendants in the case. The deceased respondent No. 4 defended the suit as bonafide purchaser of the disputed property with consideration. After recording the evidence on appreciation by holding him the bonafide purchaser the appellant"s suit was dismissed on merits by the trial court on which the present appeal is preferred.

(3.) IN pendency of this appeal, the respondent No. 4 Sardar harjinder Singh died on 5. 1. 2005, on which the necessary steps to bring his legal representatives on record was not taken by the appellant within limitation, but at belated stage on 13. 8. 2007, I. A. No. 9285/07 under Order 22 Rule 4 r/w Rule 9 of CPC to bring his legal representatives on record and on dated 27. 8. 2007 I. A. No. 9952/07 under Section 5 of Limitation Act for condoning the delay in filing the proceeding for setting aside the abatement of appeal in respect of such respondent while on 15. 11. 2007 an application I. A. No. 13307/07, under Order 22 Rule 4 r/w 9 CPC for setting aside such abatement were filed. The same were seriously opposed on behalf of the proposed legal representatives of the deceased respondent contending that C. S. No. 10-A/04 filed by the deceased Sardar Harjinder Singh for eviction against the appellant was decreed in his life time by Third Civil Judge, Class-II vide judgment and decree dated 5. 2. 2004, such decree was challenged by the appellant in Civil Appeal No. 41-A/04, the same was pending on the death of Harjinder Singh in the court of Tenth Additional District judge Jabalpur, where the present appellant brought his legal representatives on record within limitation but did not take any steps to bring the same on record in this appeal, resultantly the appeal had become abated automatically under the law. Thus there is no sufficient cause to condone such delay and setting aside the aforesaid abatement and prayer for dismissal of such applications was made. Subsequently on 3. 12. 2007 at the stage of hearing such I. As. were withdrawn by the appellant"s counsel with liberty to file the appropriate application under Order 1 Rule 10 r/w Section 151 of cpc, if the same is permissible under the law.