SHIVDAN SINGH Vs. DULEHEY SINGH

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) In S.B. Civil First Appeal No.2/1985, on moving application by one of the legal representatives of the sole plaintiff/respondent Dulehey Singh, the Court vide order dated 15.1.2003 held that the appeal has abated. In the order dated 15.1.2003, there is mention of death of appellant Shivdan Singh alone who expired on 10.11.1996 but it appears from the application dated 12.4.1999 that applicant Smt. Shakuntala in para no.2 thereof clearly stated that the plaintiff/respondent no1. Dulehey Singh also had expired on 17.10.1991 (wrongly mentioned the year 1981 in place of 1991 which is apparent from Annexure-A appended with the application). The applicant also stated in the application that since the legal representatives of plaintiff Dulehey Singh and also of the appellant Shivdan Singh have not been brought on record within the stipulated period of limitation, therefore, this appeal stands abated and hence, deserves to be dismissed.

(3.) In the order, it has also been mentioned that even in the suit pending for final decree before the trial court, no application for substitution of the legal representatives has been submitted by any of the parties. This Court, after hearing both the parties as well as the applicants, dismissed the appeal as abated by order dated 15.1.2003. After the order dated 15.1.2003, this application for setting aside abatement of appeal under Order 22 Rule 9 CPC has been filed by one of the legal representatives of appellant Shivdan Singh on 13.2.2003. In the application, it is admitted that Shivdan Singh expired on 10.11.1996 and the respondent no.1 Dulehey Singh also expired on 17.10.1991. According to the applicant, the appeal was dismissed by this Court because it was submitted before this Court on behalf of Smt. Shakuntala that the parties have not been substituted in the suit whereas after the order dated 15.1.2003, Smt. Shakuntala herself submitted an application before the trial court and prayed that the final decree may be passed. However, the trial court dismissed the said application on the ground that before the High Court, she herself submitted that no steps have been taken in the trial court for substitution of deceased parties. Learned counsel Mr. K.N. Joshi submits that the rejection of the application of Shakuntala by the trial court is under challenged as Smt. Shakuntala has preferred S.B. Civil Writ Petition No.6534/2003 to challenge the said order.