Ved Prakash Vaish, J. - (1.) Sri R.P.Yadav, Advocate, learned counsel for applicant is present.
(2.) This is an application for review under Order 47 Rules 1 and 2 C.P.C. filed by applicants seeking review of order dated 4.1.2016 (corrected on 19.1.2016) in Second Appeal no. 812 of 2001.
(3.) Before coming to the merits of the application, it is necessary to mention the brief facts of the present case, which are as under :- (i)In the year 1978, the respondent namely, Smt. Kalawati (now expired) filed a suit for specific performance of the agreement to sell dated 28.4.1973 bearing Suit No. 133 of 1978. The said suit was decreed by learned Additional Civil Judge, Agra vide judgment and decree dated 24.10.1980. The appellant/defendant filed an appeal against the said judgment and decree bearing Civil Appeal No. 103 of 1993. The said appeal was dismissed by learned 4th Additional District Judge, Agra vide judgment and decree dated 16.4.2001. Aggrieved by the said judgment and decree, the appellant has preferred the present appeal in the year 2001. The appeal was filed on 22.5.2001. (ii)The respondents moved an application for abatement on 9.7.2004 bearing Civil Misc. Abatement Application 111081 of 2004. In paragraph no. 5 of the said application, it is clearly mentioned that sole appellant died on 25.2.2002, copy of the said application was supplied to counsel for the appellant on 9.7.2014. But no application for substitution was filed. The appeal was dismissed as abated on 26.7.2004. (iii) An application for restoration bearing no. 12660 of 2005 with the prayer to recall the order dated 26.7.2004 was filed. The said application was dismissed in default on 6.1.2006. Thereafter, an application for restoration bearing no. 254254 of 2006 along with an application for condonation of delay bearing no. 254249 of 2006 was filed which was allowed on 12.1.2007. (iv)An application for restoration filed on behalf of applicants bearing no. 12660 of 2005 was dismissed in default on 4.4.2007. (v)An application for recalling the order dated 4.4.2007 bearing no. 105168 of 2007 was filed and same was allowed on 1.5.2007. The application for restoration bearing no. 12660 of 2005 was also allowed on 1.5.2007. (vi)Thereafter, an application under Order 22 Rule 3 C.P.C. bearing no. 105170 of 2007 was filed for recalling the order dated 26.7.2004. The said application was dismissed on 9.5.2007. (vii)Another application for recalling the orders dated 9.5.2007 and 26.7.2007 bearing no. 126387 of 2007 was filed. The said application was rejected for want of prosecution on 25.4.2013. (viii)Another application for restoration bearing no. 163830 of 2014 along with delay condonation application no. 163829 of 2014 for recalling the order dated 25.4.2013 was filed. On 2.7.2014, counsel for respondents informed that as per his instructions, respondent Smt. Kalawati had already died and counsel for appellant sought time to verify the said fact. (ix)An application for substitution of legal heirs of respondent was filed on 11.7.2014 bearing no. 220708 of 2014 along with application for condonation of delay bearing no. 220707 of 2014. The said applications were dismissed by passing a detailed order on 4.1.2016. For the sake of convenience, the order dated 4.1.2016 is reproduced as under :- "Heard learned counsel for the applicant-appellant and perused the record. The fact relating to this matter has been narrated in the order dated 14.01.2014 of this Court, which is as under :- This appeal was abated by this Court vide order dated 26.7.2004 because of the fact that the sole appellant had died on 25.2.2002 and proper steps were not taken to substitute his legal heirs. An application No. 105170 of 2007 was moved to recall the abatement order dated 26.7.2004 which was rejected by this Court on 9.5.2007. To recall the said orders dated 26.7.2004 and 9.5.2004, another Application No. 126387 of 2007 was moved. This application was also rejected vide order dated 25.4.2013. To recall the order dated 25.4.2013, another Application No. 163830 of 2014 along with Delay Condonation Application No. 163830 of 2014 has been filed, which is pending. It is informed that in this case the sole respondent Smt. Kalwati has died and for substituting the legal heirs of Smt. Kalawati, Application No. 220707 of 2014 along with an affidavit has been moved on 11.7.2014 regarding which notices have not yet been issued. Issue notices to legal heirs of the sole respondent Smt. Kalawati as detailed in paragraph 2 of the affidavit filed in support of the substitution application. Steps be taken within two weeks through registered post. List along with service report. In compliance of said directions, notices on delay condonation application no. 220707 of 2014 and on substitution application no. 220708 of 2014 (for sole respondent) were issued to four proposed legal heirs of sole original respondent. Report has been received to the effect that proposed respondent no. 1/1 had died and service is sufficient on proposed respondents no. 1/2 to 1/4 by refusal. In these circumstances, services are sufficient on proposed respondent nos. 1/2 to 1/4. Heard learned counsel for the applicant-appellant on his disposal of delay condonation application no. 220707 of 2014. In the annexed affidavit the deponent had mentioned that sole respondent - Smt. Kalawali had died on 06.09.2009, leaving behind of her four legal heirs. But information of this facts was given to Court on 02.07.2014 by counsel for respondent. It was further mentioned that delay in moving substitution application was not deliberate or intentional. These grounds appears not sufficient. It is no where mentioned in delay condonation application or its supporting affidavit that deponent / applicant had no knowledge of the death of sole respondent Smt. Kalawati Devi on 06.09.2009. Original appellant and respondent were neighbors and resident of same village. It was not mentioned anywhere in the application or affidavit that applicant - appellant had no knowledge of death of sole respondent, but substitution application was moved on 11.07.2014, i.e. after the lapse of about five years of death of respondent. The reasons for condonation of delay mentioned in the application or stated by the learned counsel for the applicant - appellant are found not sufficient. Therefore, this delay condonation application is liable to be dismissed. Apart from it, in light of facts mentioned in earlier order dated 14.10.2014 of this Court, and in absence of any appellant also, this application is liable to be dismissed. Accordingly the Delay Condonation Application No. 220707 of 2014 is dismissed. Since time barred second appeal was not admitted and delay condonation application is dismissed, therefore this appeal is dismissed." (x) The order was suo motu reviewed on 19.1.2016 by this Court by passing the following order :- "At the time of correction of judgement, it was found that some clerical error had occurred in last part of the judgement where the description of decided / disposed applications has to be mentioned. Accordingly, suo-motu exercising the power of the Court under Section 152 C.P.C, following direction is made for removing the clerical error in the order dated 04.01.2016. In last paragraph of the order in question dated 04.01.2016 the words "appeal is" be deleted and substituted by the words "Substitution Application No. 220708 of 2014 and Restoration Application Nos. 106429 of 2014 and 163830 of 2014 are". " (xi)Now Civil Misc. Review Application has been filed by the applicants on 20.4.2017 bearing no. 129255 of 2017 seeking review of order dated 4.1.2016 (corrected on 19.1.2016) along with delay condonation application bearing no. 129256 of 2017.;