Amitav K Gupta, J. - (1.) This appeal is directed against the order dated 13-7-2006, passed in Title Appeal No. 20 of 2003 whereby the appellate Court has rejected the application under Order XXII, Rule 4, CPC holding that the appeal has abated as a whole as the appellant has not filed any application for setting aside the abatement.
(2.) Learned counsel for the appellant, while assailing the impugned order, has canvassed tht respondent Nos. 7, 8, 10 and 18 being purchasers of the part of the suit property could not have a better title than those of the vendors. That the appeal had been preferred against the decree passed in partition suit and the other respondents have surviving right in the suit property. Learned counsel while referring to the decision of the Supreme Court in the case of State of Andhra Pradesh through Principal Secretary v. Pratap Karan, 2016 2 SCC 82 has submitted that in para 40, of the said judgment it has been observed that in the event of death of any of the plaintiff, the estate is fully and substantially represented by the other sharers, as owners of the suit property, therefore due to non-substitution of the legal representatives of deceased plaintiff, who died during pendency of the appeal, the entire appeal cannot be held to have been abated. It is argued that the settled proposition applies also to a case where the respondents who died and have not been substituted but other respondents are having their own right and interest and share in the suit property, hence, the appeal as a whole cannot abate. It is argued that this Court in the case of Ajay Kumar Soni alias Ajay Soni v. Abdul Rashid, 2018 AIR(Jhar) 1 has reiterated this settled proposition propounded by the Supreme Court in the case of Sardar Amarjit Singh Kalra v. Pramod Gupta, 2003 3 SCC 272 and observed that the appeal cannot abate as a whole when the right and interest of other parties to protect and sue survives. It is urged that in view of the settled principle, the impugned order is not sustainable in law or on facts and is fit to be set aside.
(3.) Mr. Satish Kumar Keshri learned counsel on behalf respondents, has contended that it would be evident that the appellant had not filed any petition for condonation of delay, neither had they filed any petition for setting aside the abatement. Learned counsel has referred to the decision in the case of Union of India v. Ram Charan (deceased) through his legal heirs representatives, 1964 AIR(SC) 215, and submitted that the Apex Court has observed that the period of limitation starts running from the date of death of appellant or respondents and Article 120 of the Limitation Act prescribes 90 days for filing substitution petition which can in certain circumstances be extended by 60 days. It is argued that it would be evident from the impugned order that no satisfactory explanation or sufficient cause was made out by the appellant with respect to the delay in filing the substitution petition after a period of two (2) and twelve (12) years from the date of death of the respective respondents. It is argued that the impugned order is in accordance with law and does not require any interference by this Court.;