(1.) Shri Tej Singh Mahadik, Advocate for respondent no.3. This Civil Revision under Section 115 of CPC has been filed against the order dated 15/9/2015 passed by the Second Additional District Judge, Gwalior in MJC No.50/2013, thereby rejecting the application under Section 5 of the Indian Limitation Act, as a consequence thereof, the application under Order IX Rule 4 read with Section 151 of CPC was also dismissed.
(2.) The necessary facts for disposal of the present revision in short are that the applicant had filed a suit for specific performance of contract. The said suit was decreed ex parte by judgment and decree dated 15/5/1998. The respondent/defendant filed an application for setting aside the ex parte decree, which was rejected. The order of rejection was challenged by the respondent by filing Miscellaneous Appeal before this Court and during pendency of the said appeal, the respondent/defendant Ram Singh expired on 29/4/2004 and his legal representatives were brought on record, however, prior to his death it is alleged that Ram Singh had executed a sale deed in favour of respondents no.2 and 3 and, therefore, they were also impleaded as parties. The appeal filed by Ram Singh, which was further prosecuted by his legal representatives, was allowed by the High Court by order dated 29/1/2009 and the ex parte decree passed in favour of the applicant was set aside.
(3.) Thereafter, an application under Order XXII Rule 4 read with Order XXII Rule 10 CPC was filed before the trial court for impleading the legal representatives of deceased Ram Singh on record. Although the legal representatives Sanjiv Singh, Smt. Vimla, Smt. Arpana and defendants no.2 and 3/respondents no.2 and 3 appeared before the trial court, but the remaining legal representatives of deceased Ram Singh did not appear, as result of which, the trial court directed for service of notice on Smt. Arun and Smt. Uma Bais by publication. However, the applicant did not pay the process fee and, therefore, by order dated 1/2/2010 the suit was dismissed under Order IX Rule 2 CPC.