GHANASHYAM NANDA Vs. KARTIK PRADHAN

JUDGEMENT

(1.) Heard Mr. Mohanty, learned Counsel for the petitioners.

(2.) This writ petition has been filed by the plaintiffs-petitioners against the order dated 22.11.2005 passed by the learned Civil Jude (Junior Division), Jagatsinghpur in C.S. No.128 of 2002 rejecting the application filed by the petitioner for substitution and setting aside abatement, since application for setting aside abatement was filed on 28.7.05 i.e. on the 95th day of the abatement of the suit on 25.4.05, which is beyond the limitation period of 60 days as prescribed under Article 121 of the Limitation Act and no prayer has been made for condonation of delay of 35 days in making the prayer for setting aside the abatement.

(3.) It is submitted by the learned Counsel for the petitioners that defendant No.2, namely, Bijuli Pradhan, died on 25.1.2005. Petition for substitution of her legal heirs in her place was filed on 25.4.2005. By wrongly calculating the period of limitation even though the petition for substitution had been filed on the very 91st day from the date of death, since the 90th day (24.4.2005) was a Sunday, the plaintiffs filed an application for setting aside abatement on 28.7.2005 by way of abundant caution. This petition for setting aside abatement was filed prior to the final decision taken on the application for substitution. Learned Counsel further submits that the period of limitation for filing petition for substitution is 90 days from the date of death and for setting aside abatement is 60 days thereafter. As such, if petition for substitution has been filed within 150 days from the date of death, even though the petition for setting aside abatement has not been filed along with the petition for substitution and has been filed later on, both the applications ought to have been considered together and disposed of by allowing those petitions. Learned Counsel further submits that even if assuming that there is a delay of only one day in filing the petition for substitution, the learned trial Court ought not to have rejected the prayer for setting aside the abatement, even though the application under Order 22 Rule 9 C.P.C. was filed on a later date, as it has been filed prior to the date the application for substitution was taken up for consideration.