Decided on December 14,1978

Durjodhan Jena And Anr. Appellant
Mati Dei And Ors. Respondents


P.K.Mohanti, J. - (1.) THIS appeal has been preferred against an order rejecting applications for substitution in place of deceased Defendants 5 and 10 and for setting aside abatement.
(2.) THE Appellants filed Title Suit No. 6 of 1968 under Order 21, Rule 63, Code of Civil Procedure against the Respondents. Respondent No. 1 also filed Title Suit No. 107 of 1968 for partition against the Appellants and the other Respondents. Both the suits were filed in the same Court and were ordered to be heard analogously. Further proceedings of both the suits were stayed by this Court in First Appeal No. 5 of 1969. The stay order has vacated on 6 -1 -1976 after disposal of the First Appeal. Defendants 5 and 10 died on 7 -8 -1971 and 20 -2 -1974 respectively. On 19 -11 -1976 the Appellants applied for substitution in place of the deceased Defendants and for setting aside abatement. The learned Subordinate Judge having rejected the application, this appeal has been preferred. The main ground taken by the Appellants for delay in applying for substitution and setting aside abatement was that they had no information about the vacation of the stay order prior to 4th November, 1976 when they came to know about the same for the first time from their Advocate's clerk and thereafter they contacted their Advocate and learnt about the death of the deceased Defendants and on 17 -11 -1976 they ascertained the dates of death from the Municipal office.
(3.) HAVING heard the learned Counsel for the parties and having gone through the records, I see no sufficient ground to interfere with the order of the Court below . The deceased Defendants being co -villagers of the Appellants, it is difficult to believe that the fact of death was not known to the latter. It also appears that the Appellants are Defendants Nos. 1 and 2 in Title Suit No. 107 of 1968 wherein substitution in place of the deceased Defendants had been applied for within the period of limitation. The Plaintiffs being parties to that suit must have been aware of the substitution of the legal representatives. The fact that further proceedings of the suit was stayed may be a good ground for condoning the delay under Section 5 of the Limitation Act, but the Appellants had no justification for not applying for substitution after 6 -1 -1976 when the stay order was vacated till 19 -11 -1976 when the applications for substitution was made. As already mentioned the Appellants and the deceased Defendants are residents of the same locality and it is difficult to accept the plea that the Appellants came to know about the death after contacting their counsel on 5 -11 -1976.;

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