SUBAL CHANDRA ACHARJYA Vs. BANSHIDHARI ACHARJYA

JUDGEMENT

(1.) CAN 4253 of 2016 is an application for substitution after setting aside abatement on the death of Subodh Kumar Acharjya, original appellant No.2.

(2.) CAN 9896 of 2017 is a connected application under Section 5 of the Limitation Act praying for condonation of delay in filing the application for substitution after setting aside abatement.

(3.) In CAN 4253 of 2016, it is stated by the appellants/petitioners that during the pendency of the S.A 492 of 1989, appellant No.2 Subodh Kumar Acharjya died intestate on 19th September, 2006 leaving behind his widow, two sons and married daughter as his legal heirs and representatives. It is further stated by the petitioners that original appellant No.1 being the eldest brother of appellants No.2, 3 and 4 used to look after the instant appeal on their behalf in this court. The said appellant No.1 died during the pendency of the appeal and his legal heirs and representatives were duly substituted. The other appellants were totally ignorant of legal procedure regarding substitution on the death of the original appellant No.2. As such they could not take any step for substitution within the period of limitation on the death of appellant No.2. The appellant No.1 died sometimes in 2000 and the learned Advocate on behalf of the appellants also died in 2002. Therefore, on behalf of the surviving appellants there was practically nobody to look after the instant appeal. The appellants came to know only on 31st March, 2016 when the instant appeal was listed in Lawazima before the Division Bench of this Court on 31st March, 2016. Only then, the appellants could understand that the legal heirs and representatives of deceased appellant No.2 were required to be substituted in the instant appeal. So they have filed the instant application.