- (1.) HEARD learned counsel for the par ties,
(2.) THE appeal (Second Appeal No. 169 of 1980 as registered in Allahabad High Court, which is renumbered as Sec ond Appeal No. 107 of 2001) was trans ferred to this Court under Section 35 of the U. P Re-organization Act, 2000. In said Section 35, which provides trans fer of proceedings from Allahabad High Court to Uttaranchal High Court, words used are 'proceedings pending in the High Court of Allahabad'. Since, the appeal stood abated on 21-02-1990, in fact, there was no appeal pending on 09-11-2000, in the matter and the dead proceedings could not have been trans ferred under Section 35 of the aforesaid Act. This is application No. 10898 of 2003 for substitution of legal representa tives of the deceased appellant and le gal heirs of deceased respondent, moved on behalf of legal representatives of the deceased appellant. From the affidavit filed with the substitution application, it is clear that the defendant / appellant died way back on 23-11-1989, leaving legal heirs Deepak Chand and Sushil Chand, the present applicants in the substitution application. Paragraph 7 of the affida vit filed by Deepak Chand (one of the applicants) with the aforementioned sub stitution application, further shows that plaintiff / respondent also died in Sep tember 1993, leaving behind his sons namely, Nanda Ballabh, Govind Ballabh, Uma Shanker and Jitendra Prasad.
(3.) IN view of Sub Rule (2) of Rule 31 of Order XXII of the Code of Civil Proce dure, 1980 read with its Rule 11 and also read with Article 120 of the Limitation Act, 1963, the appeal stood abated after 90 days of death of the sole appellant i. e. the appeal stood abated on 21-02-1990. The Apex Court in Madan Naik and oth ers Vs. Hansubala Devi and others, re ported in (1983) 3 Supreme Court Cases 15, has held that abatement of a proceed ing takes place on its own force by pas sage of time. No specific order for abate ment is envisaged under Order 22. It is only for setting aside of abatement that a specific order is necessary under Order 22 Rule 9 of the Code. The above mentioned substitution application is accompanied with delay condonation application for condoning the delay in moving the substitution ap plication. The delay in moving the substi tution application is more than 12 years. It is pertinent to mention here that under Article 120 of the Limitation Act, 1963, the period provided for moving substitu tion application is 90 days, and under Article 121 of said Act, 60 days time is allowed to set aside the abatement of appeal, thereafter. No doubt, Section 5 of the Limitation Act allows the court to con done delay if there is sufficient explana tion for not moving the substitution appli cation, within time. In the explanation given by the applicants it is to be seen whether, the same is sufficient to explain the delay of more than 12 years, in mov ing the substitution application ? Para graph 9 of affidavit of applicant Deepak Chand shows that applicants had no knowledge of Second Appeal being filed before the Allahabad High Court. Neither of the two legal representatives was aware of appeal being filed by their father. Had the appellant died soon after filing of ap peal, the explanation could have been said to be sufficient, that the sons of the appellant had no knowledge that their father filed an appeal before Allahabad High Court. The appeal was filed in Janu ary 1980. and in November 1989 appli cants' father, died. It is not the case of the applicants that they were living sepa rately from their father. Address shown by the applicants shows that they were liv ing with their father. As such, the expla nation given for not moving the substitu tion application after 12 years stating that they had no knowledge that their father had filed Second Appeal, nine years be fore his death before the Allahabad High Court, cannot be accepted.;