Prashant Kumar Agarwal, J. - (1.) This order will dispose of application under Order 22 Rule 4 read with Rule 9 read with Section 151 CPC filed by the applicant-appellant with a prayer to set aside the order of abatement dated 6.3.2012 passed by this Court in S.B.Civil First Appeal No.421/2009 and also application under Section 5 of the Limitation Act with prayer to condone the delay caused in filing the aforesaid application.
(2.) Brief relevant facts for the disposal of these applications are that Civil Suit No.209/2007 filed by the plaintiff-appellant for specific performance of agreement to sell was dismissed by Additional District Judge (Fast Track) Tijara (District Alwar) vide judgment and decree dated 7.7.2009 which was challenged by the appellant by way of Civil First Appeal No.421/2009 and the said appeal was admitted by this Court vide order dated 22.7.2009 and notice was ordered to be issued to respondentdefendant. The notice sent for service upon the respondent was received back with a report by the process server that the respondent has died a month ago and a note of aforesaid fact was recorded by the office vide order-sheet dated 11.11.2009 and learned counsel for the appellant was asked to take necessary steps in this regard. As necessary steps were not taken by the appellant to bring the legal representatives of the deceased sole respondent, vide order dated 6.3.2012 the appeal was ordered to have been automatically abated as the prescribed period of 90 days has already been expired. It is to be noted that none was present on behalf of the appellant on 6.3.2012. Aforesaid application under Order 22 Rule 4 read with Rule 9 CPC alongwith affidavit of appellant was filed by the appellant on 17.8.2012 with a prayer to recall the order dated 6.3.2012 and re-admit the appeal to its original number. It is to be noted that alongwith this application, application under Section 5 of the Limitation Act was not filed and it was filed on 3.8.2015 alongwith affidavit. Notices were issued to the legal representatives of the deceased-respondent who appeared through their counsel but reply to the aforesaid applications was not filed.
(3.) In the facts and circumstances of the case, it is to be considered whether these applications can be allowed and the order dated 6.3.2012 is to be set aside and recalled.;