STATE BANK OF INDIA Vs. MAHENDRA KUMAR JAIN

JUDGEMENT

(1.) THIS Miscellaneous Appeal has been preferred against the order dated 17.12.96 passed by Sri Satyendra Prasad Singh, Sub -Judge III, Katihar, in Money Suit No. 47 of 1984 whereby he has been pleased to reject the prayer of the plaintiff State Bank of India to substitute the legal heirs of deceased defendant Gopi Chand Bhatera after setting aside abatement and condoning the limitation in filing the substitution petition.

(2.) IT has been submitted by the learned Advocate of the appellant that merely on technical ground the court should not have rejected the substitution petition when a petition under Sec. 5 of the Limitation Act was already on record. He further submitted that the order of the learned Sub -Judge with regard to the abatement of the entire suit is wrong and illegal as the cause of action against remaining defendant was alive.

(3.) FROM the perusal of the impugned order it further transpires that an application for condonation of delay as required under Sec. 5 of the Limitation Act had already been filed by the appellant but in spite of that the learned court below did not condone the delay and only on technical ground refused to condone the delay and passed the order of abatement of entire suit which does not appear proper in the eye of law.