BELA RANI GOSWAMI Vs. BANESHWAR GOSWAMI

JUDGEMENT

(1.) IA No. 3419 of 2007 has been filed by the appellants praying for substitution of the legal heirs and representatives of the sole respondent who died on 28.2.2007. IA No. 55 of 2008 has been filed by the appellants explaining the delay in preferring the substitution petition since the appellants learnt about the death of deceased respondent on 22.11.2007 where -after the appellants filed the substitution petition. Learned Counsel further explains that it was -wrongly mentioned due to inadvertence that the petition for substitution was filed under Order 1 Rule 10(2) CPC though it was intended to be one under Order XXII. Rule 4 and 9, CPC.

(2.) OBJECTING to the petitions for substitution and condonation of the delay, learned Counsel for the respondents referred to the IA No. 16 of 2008 which has been filed for passing an order of abatement of the appeal on the ground of non substitution of the deceased respondent within the period of limitation. Learned Counsel for the respondent explains that the appellants being the residents of the same locality as the deceased respondent, had full knowledge of the death of the deceased respondent and yet they failed to take steps for substitution of his legal heirs and representatives. Learned Counsel also objects to the prayer for substitution to be one under Order XXII, Rule 4 and 9 of the Code of Civil Procedure on the ground that the petition filed was specifically under Order 1 Rule 10(2) CPC.

(3.) IN the light of the facts and circumstances, prayer for condoning the delay in filing the substitution is allowed. Accordingly, let the legal heirs and representatives of the deceased respondent as mentioned at paragraph 7 of the substitution petition (IA No. 3419 of 2007) be substituted accordingly.