SAROJINI RATH Vs. GOURIBALA RATH

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) F.A.O. is directed against the order dated 12.08.2008 passed by the learned Civil Judge (Senior Division), Bhubaneswar in I.A. No.247 of 2007, arising out of C.S. No.211 of 2007, rejecting the application filed by the appellants under Order 22 Rule 9 of the C.P.C. for setting aside abatement of the suit.

(3.) C.S. No. 211 of 2002 was filed by late Biraja Prasad Rath as plaintiff against deceased-predecessors in interest of the respondents. It is not disputed that the appellants are legal heirs of deceased plaintiff Biraja Prasad Rath. Earlier, appellants filed application under Order 22 Rules 1 and 3 of the C.P.C. for substitution in place of deceased-plaintiff along with application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. The application was disposed of as not pressed for non-appearance on behalf of the appellants and the suit was held to have abated by order dated 06.02.2007. In such circumstances, the appellants filed I.A. No.247 of 2007 stating that the appellants could not pursue substitution application due to illness. Respondents/defendants filed objection, averments in which read : "xxx 1. That there is no valid cogent ground to condone delay. 2. That, the original suit was abated on 10.12.2005 and the petitioner has filed this application u/s 5 of limitation act to condone delay for 19 days only on the ground of illness, without filing any application to set aside the order of abetment. 3. That, the petition filed on 27.09.05 U/s. 22, 1 and 3 C.P.C. was not pressed as such it is deemed that the said petition was dismissed and the suit abated.