RAM PAL Vs. SUBHADRA DEVI

JUDGEMENT

(1.) PLAINTIFF Ram Pal is in second appeal before this Court as he is aggrieved by the judgment and decree passed by learned Additional District Judge, Una in Civil Appeal No. 60/2010 whereby the judgment and decree passed by learned Civil Judge (Senior Division), Una in case No. 10/1996 has been affirmed and the appeal dismissed.

(2.) THE appeal is time barred. An application registered as CMP(M) No. 11019/2013 has been filed under Section 5 of the Limitation Act for condonation of delay, as occurred in filing the main appeal. It is during the course of service of the respondents, in CMP(M) No. 11019/2013 aforesaid, it transpired that respondent No. 10, herein Mukhtiar Singh (defendant No. 3 in the trial Court) is now no more being expired on 30.04.2011, during the pendency of the appeal in the lower Appellate Court. Deceased respondent -defendant Mukhtiar Singh was a contesting party in the suit, as he has filed the written statement and also contested the same. This has led in filing two applications one under Order 22 Rule 4 read with Section 151 CPC and another under Section 5 of the Limitation Act, registered as CMP(M) Nos. 766 and 767 of 2014 for substitution of his legal representatives on condonation of delay.

(3.) WHETHER the appeal on his death stands abated for want of consequential steps by the surviving defendants or his legal representatives or not, is a question to be gone into and determined by the lower appellate Court. No doubt, affidavit of Smt. Tripta Devi the General Power of Attorney of appellant -plaintiff Ram Pal has been filed along with this application {CMP(M) No. 766 of 2014}. In support of the affidavit, a copy of the death certificate has also been filed on the record of this appeal. However, such material placed on the record of this appeal cannot be looked into. The appellant may bring the same on the record of lower appellate Court while seeking the substitution of the legal representatives of deceased defendant -respondent, Mukhtiar Singh and raising the question of setting aside the abatement of the appeal, if any.