D.K.Seth, J. - (1.) One Karan Singh had filed Original Suit No. 157 of 1986 in the court of learned civil Judge (Junior Division), Etawah. The said Karan Singh died on 1st December, 1995. One Ashok Bhaskar had filed an application to bring himself on record in the place and stead of the deceased plaintiff. The said application was filed on 18th March, 1996, which is a part of Annexure-3 to this writ petition. Subsequently another application was filed on 11th December, 1996 for amendment of the application for substitution to the extend that Swami Jatav Panchayat Committee Manhaiya Khayali Ram, City- and District Etawah may be incorporated in the said application. These applications were dismissed by an order dated 10th February, 1998 passed by the learned civil Judge (Junior Division), Etawah. A revision being Civil Revision No. 49 of 1998 was moved by the petitioner. By an order dated 24th February, 1999, the Additional District Judge VII Court, Etawah had dismissed the said civil revision. These two orders have since been challenged.
(2.) Mr. R. K. Porwal, learned counsel for the petitioner contends that since the application was an application under Order XXII, Rule 10 of the Code of Civil Procedure, therefore, the question of abatement has no manner of relevance. Inasmuch as where substitution is to be made under Rules 3, 4 and 5 of Order XXII of the Code, in such cases abatement sets in on the expiry of 90 days, namely, after the expiry of limitation for substitution, which is prescribed under Article 120 of the Limitation Act as 90 days. Whereas, in case an application under Order XXII, Rule 10 of the Code, the limitation being prescribed under Article 137 of the Limitation Act, which is three years, the abatement can set in only after the expiry of the said period of three years and not before. Therefore, the petitioner was not required to apply for setting aside abatement. He also contends that even if abatement sets in after expiry of 90 days from the date of death, then also if the application is made within 60 days thereafter, namely within 150 days from the date of death, in that event it would not be a belated application requiring aid of Section 5 of the Limitation Act. Inasmuch as it is well within time to apply for setting aside abatement. Therefore, the petitioner was not required to file any application under Section 5 of the Limitation Act. The application was filed within 107 days from the date of death. Therefore, according to him both the Courts below having dismissed the application on the ground that it did not accompany any application under Section 5 of the Limitation Act nor an application for setting aside abatement is wholly perverse, illegal and cannot be sustained. Therefore, the said orders are liable to be set aside.
(3.) Mr. K. N. Misra, learned counsel for the opposite parties on the other hand contends that in the present case Order XXII, Rule 10 has no manner of application. According to him even if the petitioner claims by virtue of a Will, he is claiming as legal representative of the deceased and not by virtue of devolution of Interest. Therefore, the substitution was to be made under Order XXII, Rule 3 of the Code, for which limitation is 90 days, on the expiry whereof application for setting aside abatement was mandatory. He had also contended that the said 60 days after expiry of 90 days is prescribed for limitation for applying for abatement. According to him, there is a distinction between setting aside abatement and substitution. Limitation for substitution having expired after 90 days, the application for substitution is required to be accompanied by an application under Section 5 of the Limitation Act explaining the delay. He further contends that neither the application filed on 18th March, 1996 nor the application filed on 11th December, 1996 are supported by any affidavit. According to him, an application under Order XXII of the Code is to be supported by affidavit. Without an affidavit, the application cannot be entertained. Therefore, both the courts below were Justified in dismissing the application. He also contends that the impugned order of the revisional court was passed on 24th February, 1999 and the same is being challenged almost after six months. On these grounds, he prays that the writ petition be dismissed.;