HAZI HABIBUR RAHMAN Vs. AYUB ALI SAWDAGAR

JUDGEMENT

(1.) The petitioner seeks leave to appeal against the judgment and order dated 24.04.2004 passed by a Division Bench of the High Court Division in Appeal from Original Decree No. 308 of 2001 allowing an application for substitution after setting aside abatement.

(2.) In a suit for declaration of title, upon contest the suit was decreed and during pendency of the appeal on 13.4.2002 a copy of an application for substitution after setting aside abatement was served upon the respondent No.2, petitioner, for substitution of the heirs of the deceased sole appellant Ayub Ali Sawdagar stating, inter alia, that during pendency of the said appeal i.e. First Appeal No.308 of 2001 the sole plaintiff-appellant died intestate on 28.7.2002 leaving behind the applicants, the respondent No. 1(a) to 1(g) herein, as his legal heirs to inherit the property left by him. That it was further stated that respondent No.1 (a) to 1(g) were not aware of proceeding of any appeal filed by their predecessor and the learned Advocate for the deceased-appellant also was not aware of the death of the appellant and as such it was not possible for him to take any step for substitution of the respondent No. 1(a) to 1(g) in place of deceased appellant Ayub Ali Sawdagar and consequently the appeal abated for non-substitution of the respondent No. 1(a) to 1(g) within the period of limitation.

(3.) The High Court Division upon hearing the said application allowed the same setting aside the abatement and substituting the applicants in place of deceased appellant Md. Ayub Ali upon condonation of delay of 615 days.