BAJI LAL MISHRA Vs. BHAGWATI SHARAN MISHRA

JUDGEMENT

(1.) A . No. 2265/2001 has come up on rejection of the prayer on behalf of the appellants for modification of the order dated 24.7.2001 passed by the Joint Registrar granting three weeks final time to serve a copy of the petition at Flag Q on the other side and also to file limitation petition for substitution petition at Flag Q.

(2.) IT appears that in pursuance to the order of the Joint Registrar limitation petition was filed and the matter was contested before the Registrar (General) by the learned counsel for the appellants. According to him, there is no requirement to file a petition under section 5 of the Limitation Act for condonation of delay in filing of the petition at Flag Q as the same was filed under Order XXII Rule 9 C.PC. Learned counsel for the appellants has submitted that under Clause (2) of Order XXII Rule 9 C.P.C. the plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. According to the learned counsel, in view of the provision for substitution of the legal representative of the deceased plaintiff under Article 120 an application can be filed within 90. days and where there is an abatement and prayer for setting aside the abatement is made, the same can be filed within 60 days from the date of abatement under Article 121 of the Limitation Act. It is submitted that thus the total period for setting aside of abatement as prescribed is 150 days and the condonation of limitation would only arise after expiry of the said period and not where application is filed within the said period.

(3.) ACCORDINGLY , the order dated. 24.7.2001 passed by the Joint Registrar is modified to the extent that the appellants shall not be required to file limitation petition for a substitution as prayed in -the pptition at Flag Q.