UCO BANK Vs. KARANPAL S/O MUKUNDILAL

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dtd. 26/10/2004 passed by Third Additional District Judge, Gwalior and order dtd. 10/01/2001 passed by Fifth Civil Judge, Class-I, Gwalior was affirmed in Civil Suit No.29-B/2000 filed by the petitioner was dismissed as abated.

(2.) The necessary facts for disposal of the present petition in short are that, the petitioner filed a civil suit on 10/12/1994 against Smt. Leela Bai for recovery of loan amount. It appears that on 13/01/1995, Smt. Leela Bai sole defendant expired, but no application under Order 22 Rule 4 C.P.C. was filed within a period of 90 days. Thereafter, it appears that on 31/07/1995, the petitioner filed an application under Order 22 Rule 4 C.P.C. thereby disclosing the names of the legal representatives of deceased Leela Bai. However, in this application the date of death of Leela Bai was not mentioned. It appears that in compliance of order dtd. 13/03/1996, the petitioner filed an application on 26/06/1996 mentioning that the date of death of the sole defendant as 25/04/1995. The respondents filed their response to the application filed under Order 22 Rule 4 C.P.C and pleaded that the sole defendant Leela Bai has expired on 13/01/1995 and the application for bringing her legal representatives on record has been filed after six months of her death and it was claimed that the sole defendant Leela Bai did not die on 25/04/1995 as disclosed by the petitioner in its application dtd. 26/06/1996. The said reply was filed on 13/08/1996. Thereafter, the petitioner filed an application under Order 22 Rule 9 C.P.C. for setting aside the abatement. An application under Sec. 5 of Limitation Act was filed on 03/12/1996 for condoning the delay in filing an application for setting aside the abatement.

(3.) The Trial Court by order dtd. 10/01/2001 rejected the application filed under Sec. 5 of Limitation Act, under Order 22 Rule 9 C.P.C. and as a consequence also application under Order 22 Rule 4 C.P.C. was also rejected merely on the ground that the petitioner has failed to disclose the bonafide reasons for not filing the application within a period of limitation and accordingly, the suit has abated.