KANTA BHATNAGAR, J. - (1.) MAGAN Lal respondent No. 1 (Since dead) filed a suit under Rajasthan Pre -emption Act, 1966 (hereinafter to be referred as the Act) regarding his right for purchase of a house sold by appellants No. 1 and 2 to respondent; No. 3. Magan Lal succeeded in that suit and it was held that he had a right of pre -emption regarding the suit property. Against that judgment the vendors respondents No.l and 2 preferred an appeal in this Court. During the pendency of appeal Magan Lal expired on January 19, 1983. On April 20, 1983 Mr. Arjun Lal Mehta, Counsel for the appellants filed an application under O. 22, r. 4 and 11 of the Code of Civil Procedure hereinafter to be referred as the Code with a prayer that as Magan Lal had died on January 19, 1983 his legal representatives, mentioned in the application, be substituted in his place. It was also mentioned in the application that it may be treated as an application to set aside the abatement of the appeal. On July 4, 1983, another application under O. 22, r. 9 (2) read with r. 11 of the Code, stated to be in continuation of the application dated April 20, 1983, was filed by Mr. A.L. Mehta, learned counsel for the appellants with the prayer that the abatement of the appeal may be set aside and the legal representatives of Magan Lal mentioned in the previous application may be brought on record. Notices of the applications were issued to the legal representatives of Magan Lal. Mr. Dinesh Maheshwari appeared on behalf of the legal representatives of Magan Lal and filed reply to the application under O. 22, r. 4/11 of the Code. In the reply it is mentioned that the information of the death of Magan Lal was sent to the appellants and their husband Lalji Bhai prior to January 29, 1983 through registered post cards and there was no reason for setting aside the abatement. Both the parties filed affidavits in support of their respective contentions.
(2.) MR . A.L. Mehta learned counsel for the appellants strenuously contended that there is no reason to disbelieve the version of the appellants that they had no knowledge of the death of Maganlal prior to June 18, 1983 because they were residing at their village -Panchaguda, Tehsil,Dhariavad, District -Udaipur at a distance of 125 K. M. from Udaipur. Mr. Mehta submitted that he received a postcard on April 19, 1983 from Munshi Sohanlal of Udaipur, informing that Maganlal had died on January 19,1983 and his legal representatives were his wife and two sons named in that postcard and that he could not find out about any other legal representative of Maganlal and that Lalji Bhai and his wife were living at their village and not at Udaipur and therefore he Munshi Sohan Lal had himself found out the name of the legal representatives and application in that regard may be filed. Mr. Mehta submitted that he received this postcard late in the afternoon of April 20, 1983 and immediately thereafter on the same day filed the application for substituting the legal representatives of Maganlal and for setting aside the abatement of the appeal.
(3.) MR . Dinesh Maheshwari, learned counsel for the legal representatives contended that the appeal abated after the expiry of the period of 90 days from the date of the death of Maganlal and application filed on April 20, 1983 was not in time. That, mentioning a sentence in the application for substitution of legal representatives that the application may be treated as an application for setting aside the abatement is not according to law and no relief should be granted to the appellants on such an application. According to Mr. Maheshwari, if Sohanlal was looking after the work of Mr. A.L. Mehta at Udaipur he should have informed Mr. A.L. Mehta in time and should have also contacted with the appellants. That, the application dated April 20, 1983 is neither in proper form nor supported by any affidavit and therefore, deserves no consideration. Regarding the second application for setting aside the abatement filed on July 4, 1983, the argument of Mr. Maheshwari is that the appellants were staying in the house adjacent to that of Maganlal at Udaipur whenever they used to visit Udaipur and their claiming ignorance of the death of Magan Lal is not believable. It has been further contended by Mr. Maheshwari that even assuming for the sake of argument it is believed that the appellants came to know of the death of Magan Lal on June 18, 1983 through their husband still there was no reason for them not to swear the affidavit prior to June 26, 1983.;