- (1.) In this application the present surviving appellants in the above second appeal, have prayed for setting aside of the abatement of appeal and for substitution of the legal representatives of the both the respondent nos. 1 and 2 who died on October 27, 2007 and in the year 1999 respectively. This application was filed on September 05, 2012, long after the appeal stood abated as against both the respondents and the prescribed time for an application for setting aside of abatement of the appeal as against both the respondents expired. Therefore, the appellants applicants have also prayed for condonation of delay in filing this application. The names of the legal representatives of the deceased respondent nos. 1 and 2 have been stated in paragraphs 11 and 13 of this application respectively. Although, the appellants applicants filed this application with the aforementioned prayers but when this application was taken up of hearing on July 09, 2015 Mr. Md. Yasin Ali, learned counsel appearing for the appellants applicants submitted that due to inadvertence, in the application the applicants omitted to state that the respondent no. 2 since deceased, being the original defendant no. 2 in the suit before the trial Court had filed his written statement but, thereafter, he did not contest the suit and as such in terms of sub-Rule (4) of Rule 4 of Order XXII of the Code of Civil Procedure, hereinafter called as "the Code", the appellants are entitled to be exempted from substituting the legal representatives of the deceased respondent no. 2. For the purpose of incorporating the aforesaid facts, Mr. Ali prayed for leave to file a supplementary affidavit on behalf of the appellants applicants and such prayer was allowed. On August 06, 2015 when this application was taken up for hearing Mr. Ali appearing for the appellants applicants filed a supplementary affidavit disclosing that the decree passed by the trial Court dismissing the suit, against the respondent no. 1 was on contest and ex parte against the respondent no. 2 and that the decree passed by the first appellate Court dismissing the appeal against both the respondents was on contest. Relying upon the statements made in the said supplementary affidavit. Mr. Ali strenuously urged that when the deceased respondent no. 2 only filed his written statement before the trial Court and thereafter did not contest the suit before the trial Court, it is a fit case where this Court should exempt the appellants from substituting the legal representatives of the deceased respondent no. 2. According to Mr. Ali, under sub-rule (4) of Rule 4 of Order XXII the appellants applicants are entitled to be exempted from substituting the legal representatives of the deceased respondent no. 2 who died in the year 1999, no matter that the appeal has already abated as against the respondent no. 2 on the ground that his legal representatives were not substituted in the appeal within the statutory period of limitation. Mr. Ali cited the decision of the Full Bench of this Court in the case of Santosh Kumar vs. Nandalal Chakrapani, 1963 AIR(Cal) 289 .
(2.) Without prejudice to the above contention, so far as the prayer for condonation of delay in filing this application for setting aside of the abatement of the appeal as against the deceased respondent nos. 1 and 2 is concerned, Mr. Ali submitted that the same has been duly explained in paragraph 17 of the application. The statements contained in paragraph 17 of the application which are set forth to explain the delay in filing this application will be discussed in the later part of this judgment.
(3.) However, Mr. Bhaskar Ghosh, learned senior counsel appearing for the legal representatives of the deceased respondent no. 1 submitted that in their application the appellants-applicants have admitted that the respondent no. 1 died on October 27, 2007, the appeal as against the respondent no. 1 stood abated on January 26, 2008 and no application was filed, within the prescribed period of sixty days from the date of the abatement of the appeal as against the respondent no. 1, for setting aside of the abatement of the said appeal against the respondent no. 1 and for substitution of his legal representatives in the appeal. He pointed out that in paragraph 12 of the application, the appellants have admitted that the delay in filing this application for setting aside of the abatement of the appeal as against the deceased respondent no. 1 is four years and seven months. He further submitted that admittedly the respondent no. 2 had died in the year 1999 and in paragraph 14 of this application, the applicants have admitted that there is a delay of about thirteen years in filing this application for setting aside the abatement of the appeal as against the deceased respondent no. 2. According to Mr. Ghosh, the statements made in paragraph 17 of the application do not contain any explanation in the eye of law for condoning the delay in filing this application for setting aside of the abatement of the appeal against both the deceased respondents. With regard to the contention of Mr. Ali that since respondent no. 2, since deceased did not contest the suit before the trial Court, this Court should exercise discretion under sub-rule (4) of Rule 4 of Order XXII exempting the applicants from substituting the legal representatives of the respondent no. 2, Mr. Ghosh submitted that once the appeal stood abated as against the respondent no. 2, the provisions of sub-Rule (4) of Rule 4 of Order XXII cannot be applied in this case. In support of such contention, Mr. Ghosh relied on the decision of the Division Bench of this Court in the case of Nani Gopal Mukherji vs. Panchanan Mukherji and Anr. 59 CWN 394 as also a single Bench decision of this Court in the case of Annapurna Debi vs. Harsundari Dassi, 1975 AIR(Cal) 12 .;