JEET RAM Vs. GANGA PHAL

JUDGEMENT

(1.) C .M. No. 365-C of 1998 The legal representatives of appellant Jeet Ram, who had died on 5.4.1991, during the pendency of this Regular Second Appeal, filed by him have filed this application for re-calling the order dated 15.1.1998, passed by this Court, whereby the application (C.M. No. 4681-C of 1997) filed by them under Order 22, Rules 44, 9, and 11 C.P.C. for substituting them as legal representatives of deceased Jeet Ram appellant, after condoning the delay and setting aside the abatement of the appeal, was dismissed in their absence.

(2.) IT has been stated in the application that when the aforesaid application i.e. C.M. No. 4681-C of 1997 was called for hearing on 15.1.1998, counsel for the applicants was busy in arguments before a Division Bench, therefore, he could not appear at the relevant time. It has been further stated that in the order dated 15.1.1998, it has been mentioned that the applicants did not seek the condonation of delay in filing the application for setting aside the abatement of the appeal, whereas, a specific prayer was made in the application for condoning the delay in filing the application. It has been further stated that case of the applicants is covered by the decision of the Supreme Court, where six years delay in filing the application for abatement of the appeal was condoned. Therefore, in the interest of justice, it has been prayed that the order dated 15.1.1998 be recalled, as the same was passed without hearing the counsel for the applicants. The application is supported by an affidavit.

(3.) CONSEQUENTLY , this application is allowed and the order dated 15.1.1998, passed by this Court, is hereby re-called. C.M. No.4681-C of 1978