LACHHMI NARAIN Vs. MANGILAL

JUDGEMENT

(1.) THIS is an application under Order 22, Rule 9 of the Code of Civil Procedure.

(2.) AN appeal was presented by Lachhmi Narain and his son Sita Ram, plaintiffs, against Mangilal and Rameswar, defendants-respondents, in a suit for redemption of immovable property on 6th March, 1952. Notices of the appeal on the two respondents were served personally some time in April, 1952, and on 12th May, 1952, an order was recorded that the case was complete, and may be entered in the list of ripe cases. On 6th August, 1954, it was ordered that the case be put up for hearing on llth April, 1955. On llth April an application was presented by the appellants under Order 22 Rule 9, Civil P. C. , that they came to know from one Bhagirath on 6th April, 1955, that mangilal respondent had died on Pos Budi 13, Samwat 2018 (2nd January, 1954); and had left as his heir and representative an adopted son Kalyan. It was prayed that the abatement of the appeal against Mangilal be set aside, and Kalyan be brought on record as legal representative in place of the deceased Mangilal. Notice was issued to Kalyan, and he has put in appearance, and opposed the application for setting aside abatement.

(3.) LEARNED counsel for Kalyan has contended that the fact of the ignorance of the death of the respondent is not a sufficient cause for the delay in making the application for setting aside abatement. It may be mentioned that Kalyan in his affidavit mentioned that Mangilal actually" died on Mah Budi 3, Samwat 2009 (3rd january, 1953 ). It was further stated in the affidavit by Kalyan that although the appellants generally lived outside their home village Reen-gug where Mangilal also resided, they had visited their home town Reengus on two or three occasions, and further that a Dharamshala had been built in the memory of Mangilal, after his death, and further the two Mukhtars of, the appellants Jagannath and Badri Narain lived at village Gudla only about three miles away from Reengus, and since they come to Reengus very often, they must have come to know of the death of mangilal soon after his death. It was in the circumstances prayed that the application to set aside abatement having been presented long after the period provided by law, and no good cause having been shown, the application of the appellants under Order 22, Rule 9, Civil p. C. , for bringing on record Kalyan in place of the deceased Mangilal should be dismissed.