DARU MUNDA Vs. LITTA MUNDA

JUDGEMENT

(1.) HEARD the parties and with their consent this appeal is disposed of under Order XLI, Rule 11 of the Code of Civil Procedure. During pendency of Title Suit No. 20 of 1989, Kir Singh Munda, defendant No. 7 died on 11.10.1997, but step for substitution of his heirs was not taken in time. However, when on 7.1.1998, defendants informed the Court, step for substitution was taken by plaintiff with a prayer to condone the delay. Trial Court by impugned order dated 6.1.2000 refused to condone the delay and set aside abatement and held that the suit stood abated as a whole. No reason has been assigned as to how the whole suit stood abated for non -substitution of the heirs of deceased defendant No. 7 in time. Firstly, Court was required to record a finding, whether the suit stood abated as against the heirs of deceased defendant No. 7 and only thereafter the Court could have considered the question whether on that account the whole suit abated.

(2.) IN the impugned order trial Court has not considered this aspect of the matter and in one line held that suit abated as a whole.

(3.) IN the aforesaid circumstance, delay in taking step for substitution, vice deceased defendant No. 7 is condoned, abatement, if any, is set aside, name of deceased defendant No. 7 is directed to be expunged from the memorandum of appeal and his heirs named in the petition dated 19.12.1999 are directed to be substituted.