S.K. Verma, J. - (1.) This first appeal has hen filed under Order 41 Rule 1 (k) of C.P.C. against the order dated 9.4.1981 passed by the II Additional District Judge, Jaunpur in civil appeal No. 243 of 1978 Smt. Jwala Devi v. Ram Narain Maurya, C.A. No. 243 of 1978, on an application 15-A(1) dated 29.10.1979 of Vijai Nath Srivastava and three others for substitution as legal heirs of deceased Smt. Jwala Devi rejecting the application and treating the appeal as abated.
(2.) The first objection raised during the hearing of the appeal was that this appeal is not maintainable as a first appeal but it should have been filled as a second appeal because after abatement die appeal No, 243 of 1978 stood finally decided. After hearing the learned Counsel for the parties on this preliminary question I find that the appeal has been properly filed because Smt. Jwala Devi, the original plaintiff-appellant had admittedly died on 25th May, 1979 and because no application for substituted of the legal heirs of the sole plaintiff-appellant had been moved within time, as per Order 22, Rule 3(3) C.P.C., the suit stood abated. The limitation under Article 129 of the Limitation Act for moving an application for substitution is 90 days from the date of death. No application having been moved within the time, the appeal stood abated. The application for condoning the delay and for substitution which was moved on 29.10.179 was ultimately rejected by the court.below. This order was passed under Order 22, Rule 9 C.P.C. An appeal has been directed against dial order under Order 43, Rule l(k) of the C.P.C. The appeal is, therefore, maintainable as a First Appeal from Order.
(3.) The merits of the appeal may now be considered. The appellants are the own sons of Smt. Jwaia Devi. They filed affidavit of Vijai Nath Srivastava, the appellant No. 2 before the lower appellate Court, claiming that Dina Nath Srivastava, appellant No. 1 was doing pairvi in the appeal since the the beginning and that as he had been transferred to Ballia, the date fixed in the appeal escaped from his mind and he could not inform the other appellants for moving an application for substitution. The appellants Nos. 2, 3 and 4 were engaged in their service and appellant No. 4 was too weak to walk, hence the substitution application could not be moved in time. When the oral information was received from Ballia, the appellant No. 2 inspected the file on 29.10.1979 and came to know of the facts of the aforesaid appeal and then moved application on the same day along with his affidavit. In the counter affidavit the respondent stated that all the four sons were doing pairvi on behalf of Smt. Jwala Devi and they had knowledge of the appeal and they were living at Jaunpur or were frequently visiting that place. They had no good reason for delaying the substitution application. The lower appellate Court was of the opinion that the four applicants being own sons of deceased-appellant they did not clarify in the affidavit of Vijay Nath Srivastava as to at what places these four appellants resided. Their addresses were not given. They must have gathered at lie time of the death of their mother. Appellant No. 1 living at Jaunpur and was doing pairvi in the appeal. The delay could, therefore, not be explained sufficiently by the appellants. I find no reason to differ from the findings of the lower appellate Court on the basis of which the application for condonation of delay and for substitution had been rejected.;