Decided on February 07,2018

Legal Heirs Bhubaneswar Das Barman Appellant
Harmohan Kumar Respondents


PRASANTA KUMAR DEKA,J. - (1.) Heard Mr. Rs.Bora, learned counsel for the petitioner and Ms. P Bhattacharya, learned counsel for the respondents No. 1 to 6.
(2.) The sole appellant, Late Mari Priya Barman preferred the connected second appeal on or about 01.02.1999 against the judgment and decree passed by the learned District Judge, Nalbari on 24.09.1998 in Title Appeal No. 14/1998 against the present respondents. The respondents entered appea-rance. The sole appellant died on 24.7.2002 and as a consequence owing to non substitution of the said deceased appellant by her legal heirs, the second appeal had abated and to that effect, order dated 22.12.2006 was passed by this court. In the mean time, the conducting Senior Counsel, Late N Chakraborty died in the year 2010. Prior to his death, he was suffering from illness beginning from the year 2007. Later on, the present petitioners being the legal heirs of the sole appellant on 04.02.2013 preferred an application under Section 5 of the Limitation Act, 1963 for condonation of the delay in filing the petition for substitution of the sole appellant to condone the delay of 6 years 4 months 12 days in filing the said application for substitution. The said application was registered as MC No. 997/2013. On 22.01.2016, it came to the notice of the learned conducting counsel on behalf of the present petitioners that the period for condonation of delay ought to have been calculated from the date of death of the sole appellant instead of one taken into consideration from the date on which the appeal was ordered to be abated i.e. on 22.12.2006. Vide order dated 22.01.2016, the petitioners were allowed to remove the defect within 10 days. However, on perusal of the case records of MC No. 997/2013 it is seen that no such rectification was done. Instead, the petitioners on 16.10.2015 filed this application for condonation of delay of 13 years 2 months 21 days in substituting deceased appellant by her legal heirs. The subsequent petition is registered as I.A. 1030/2016 which has been taken for its disposal.
(3.) It is pertinent to mention here that the fact of filing of the said application of MC No. 997/2013 is mentioned in this application.;

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