B.L. Yadav, J. - (1.) THIS petition is directed against the order of the Board of Revenue dated 13.7.1976 The appeal has been directed to abate as no substitution application was filed on the death of G Mrao Rao, father of Respondent No. 3, within ninety days and that no application to set aside abatement was filed within a period of sixty days thereafter.
(2.) I have heard Sri A.N. Singh, learned Counsel for the Petitioners and Sri N.C. Pandey, learned Counsel for the Respondents. The learned Counsel for the Petitioners urged that Ghirau Rai died on 31.3.1974 and the substitution application was filed on 30.9.1974 accompanied by an application Under Section 5 of the Limitation Act for condensation of delay. It appears that till 31.8.1974 an application to set aside abatement must have been made and in fact it was made on 10.9.1974. Hence there appears to be ten days delay in making the application to set aside the abatement and as it was a negligence of the clerk of the counsel for the Petitioner that was in fact a sufficient cause for condoning the delay. Reliance was placed on Lala Hanuman Das v. Pirthvi Nath,, 1956 AWR 455.
(3.) SRI N.C. Pandey, learned Counsel for the Respondents, on the other hand, urged that the delay was not sufficiently explained and that no application under Order XXII Rule 9 Code of Civil Procedure was filed and application Under Section 5 of the Limitation Act cannot be treated to be an application for setting aside the abatement also, and that the application moved by the Petitioners was not maintainable and cannot be treated as an application to set aside abatement. Reliance was placed on Sitaram Ramcharan v. Nagrasna (M.N.) Authority under the Payment of Wages Act for Ahmedabad Area, 1960 LLJ SC 29 .;