LAXMI CHAND Vs. BHAWATI BAI

JUDGEMENT

(1.) THIS petition is directed by the applicant/appellant/defendant laxmi Chand (since dead) (now represented by the legal representatives) for setting aside the abatement of the S. A. No. 480/05 caused on account of death of Phoolabai, the respondent no. 2 of such appeal. The prayer for restoration of such Second Appeal is also made. In pendency of the petition i. A. No. 8120/06 under Order 22 Rule 9 r/w Section 5 of the Limitation Act for condoning the delay in filing the petition for setting aside the abatement is also filed. The application under Order 22 Rule 4 of the CPC is not filed separately in the present petition as the same was filed as IA. No. 3211/06 on 27. 3. 06 in the aforesaid second appeal.

(2.) IN all the applications it is said that Smt. Phoola Bai the principle respondent no. 2 in the aforesaid S. A. had died on dated 23. 12. 05. Such intimation was given by her counsel in the court on dated 27. 1. 06. From such date within 60 days the application for bringing her legal representatives on record was filed in aforesaid S. A. on dated 27. 3. 06, but vide order dated 4. 8. 06 by holding such application barred by time the appeal was dismissed directing that the same has been abated automatically on not bringing the legal representatives of respondent no. 2 on record within 90 days from the date of her death. However, liberty was given to the applicant to file an appropriate application for setting aside such abatement. The application for setting aside the abatement is preferred on dated 24. 8. 07, after passing the aforesaid order regarding dismissal of the appeal. As per further averments of the petition the initial application for bringing her legal representatives was filed within 60 days from the date of knowledge received from the counsel of the deceased-respondents under Order 22 Rule 10-A of the CPC. Thus, the same could not be treated as barred by time. Besides this averments regarding condoning the delay in filing the proceedings for setting aside the abatement are also mentioned. The petition and IA no. 8120/06 are supported by an affidavit of the principle applicant Laxmi Chand (since deceased ). In pendency of the petition the sole principle applicant died and his legal representatives the present applicants were brought up on record.

(3.) THE notices of this petition were sent to the respondent no. 1 and the proposed legal representatives of respondent no. 2 whose names are mentioned in para 1 of the petition. In response of such notices the reply of aforesaid applications are filed on their behalf. According to them the grounds mentioned by the applicants for condoning the delay and setting aside the abatements are denied. It is further stated that in the lack of any sufficient cause the petition as well as IA are liable to be dismissed. The proposed legal representatives of respondent no. 2 can not be deprived from their acquired legal right on not bringing them on record within limitation. Such reply are also supported by the affidavits of Ghanshyam Pawar, one of the legal representatives of the deceased, the respondent no. 2.