- (1.) HEARD learned counsel for the parties on applications filed by the appellant under Order XXII, Rule 4 & 10 CPC and application under Section 5 of the Limitation Act, 1963 read with Order XXII, Rule 9 CPC.
(2.) IT is inter -alia indicated in the application that respondent - defendant Nos.3 & 7 have expired on 31.7.2009 and 26.8.2007 respectively and therefore, it is prayed that their legal representatives be taken on record, the delay in filing application under Order XXII, Rule 9 CPC be condoned and the abatement be set -aside. It may be noticed that the suit was dismissed by the trial court by its judgment and decree dated 21.7.2006, against which, first appeal was preferred by the appellant and the same was rejected by the lower appellate court on 25.10.2010 i.e. the said respondent Nos.3 & 7 had died during the pendency of the first appeal.
(3.) A reply to the application under Order XXII, Rule 9 CPC has been filed by learned counsel appearing for the proposed respondent No.7/1 Hem Singh inter -alia indicating that the first appeal itself had abated and therefore, the legal representatives cannot be impleaded in the present second appeal and consequently, the appeal deserves to be dismissed as having abated.;