- (1.) Heard learned counsel for the appellants.
(2.) The defendant-appellants have preferred this civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned order dated 11.8.2008 passed by Additional District Judge (Fast Track) No.3, Ajmer camp at Kishangarh in Civil Regular Appeal No.66/2007 whereby the learned appellate Court by allowing an application under Order 22 Rule 3, 9 read with Section 151 CPC filed by the plaintiff-respondents dismissed the appeal filed by the appellants as abated.
(3.) Brief relevant facts for the disposal of this appeal are as below: (i) Late-Shri Mangu Ram (original plaintiff) filed Civil Suit No.110/2007 against Late Smt. Barji (original defendant) for specific performance of agreement to sell with the averment that Smt.Barji Devi agreed to sell her share in the suit property in lieu of sale consideration of Rs.15,000/- to him and in this regard an agreement to sell was also executed on 25.2.1985. The suit filed by the original- plaintiff was decreed by the trial Court vide judgment and decree dated 27.10.1999. (ii) Against the judgment and decree passed by the trial Court original-defendant-Smt.Barji filed Regular Civil Appeal No.66/2007 before the first appellate Court i.e. Additional District Judge (Fast Track) No.3, Ajmer camp at Kishangarh under Section 96 CPC. (iii) During pendency of that appeal original-defendant-Smt.Barji died and in her place her two sons Shri Shravan and Teju and her daughter Smt.Kamla were substituted as party defendant-appellants in the appeal. (iv) During pendency of that appeal original-plaintiff-Shri Mangu also died and in his place his legal representatives were substituted as party plaintiff-respondents. (v) During further pendency of the appeal before the first appellate Court one of the substituted legal representatives of the original-defendant i.e. Smt.Kamla also died on 11.11.2006 and an application under Order 22 Rule 3 CPC was filed on 13.12.2007 i.e. after expiry of more than one year from the date of death for bringing on record the legal representatives of the deceaseddefendant-appellant-Smt.Kamla. No separate application under Order 22 Rule 9 CPC for setting aside the abatement and application under Section 5 of the Limitation Act for condoning the delay caused in filing the application was filed. No prayer was also made in the application that after condoning the delay caused in filing the application, the abatement to the extent of deceased-appellantSmt.Kamla may be set aside. (vi) An application was filed by the respondents to the effect that as the appeal has abated to the extent of deceased-appellantSmt.Kamla and no application has been made for setting aside the said abatement and, therefore, as a consequence thereof the whole appeal is liable to be dismissed as abated. (vii) Reply to that application was filed by the present appellants and it was pleaded that as remaining legal representatives of the deceased-original-defendant-appellant-Smt.Barji are already on record, the whole appeal could not be dismissed as abated. (viii) The application filed by the respondents was allowed by the appellate Court and it was held that the whole appeal is liable to be dismissed as abated. Feeling aggrieved, the defendant-appellants are before this Court by way of this appeal.;