Ashis Kumar Chakraborty, J. - (1.) These two applications are at the instance of the two daughters and one son of the appellant no. 3 in the second appeal. According to the applicants, during pendency of the second appeal the appellant no. 3 died on April 12, 2010 leaving behind them and their father, the appellant no. 4 in the appeal.
(2.) Although, the appellant no. 3 died on April 12, 2010 but the present applicants being her heirs were not brought on record within the prescribed period of limitation of ninety days from the date of the death of the appellant no. 3. In the first application, CAN No. 6411 of 2014 the applicants have prayed for, recording the death of the appellant no. 3 and for their substitution in the appeal, after setting aside of the abatement of the appeal so far as the appellant no.3. The second application, CAN No. 6412 of 2014 is under Section 5 of the Limitation Act, 1963 for condonation of 1509 days delay in filing the application for setting aside of the abatement of the appeal in so far as the appellant no. 3.
(3.) Though the applicants have filed the present applications for recording the death of the appellant no. 3 and for their substitution in the appeal in place and stead of the deceased appellant no. 3, after condonation of delay, but Mr. Bhattacharyya, the learned Advocate representing the applicants, first contended that since the husband of the deceased appellant no. 3 is already party to the present appeal as appellant no. 4, the appeal did not abate in so far as the appellant no. 3 for not substituting her remaining heirs and legal representatives, within the prescribed period of limitation. In support of such contention, Mr. Bhattacharyya cited the decision of the Supreme Court in the case of Mohd. Hussain & Ors. v. Gopibai & Ors. reported in (2008) 3 SCC 233. In the said case, during the pendency of the second appeal before the High Court of Madhya Pradesh at Indore, one of the respondents in the appeal died but no application was filed for substituting all the heirs and legal representatives of the deceased respondent in the appeal, before the judgment was delivered in the second appeal. The appeal was decided by the High Court in favour of the appellants. While challenging the said decision of the High Court, a contention was raised before the Supreme Court, that the entire appeal had abated as all the heirs and legal representatives of the deceased respondent were not substituted in the appeal, before the delivery of judgment by the High Court. In the special leave petition, it was, however, found that some of the heirs and legal representatives of the deceased respondent were already parties to the second appeal. The Supreme Court held that since some of the heirs of the deceased respondent were already parties to the appeal, the estate of the deceased respondent was sufficiently represented and, therefore, the appeal had not abated as against as the deceased respondent. Thus, according to Mr. Bhattacharyya in view of the said decision of the Supreme Court, even in the instant case when the husband of the deceased appellant no. 3 is already on record as one of the appellants in the second appeal, the appeal did not abate in so far as the appellant no. 3 is concerned and the present applicants are entitled to bring themselves on the record of the second appeal as the heirs and legal representatives of the deceased appellant no. 3, after recording the death of the appellant no. 3.;