ORDER

1. Leave granted. The appellant is before us aggrieved by and dissatisfied f with the judgment and order dated 13-12-2007 passed by the High Court of Bombay at Goa in Civil Revision Application No.4 of 2007, whereby and whereunder a revision application filed by the respondents herein questioning the legality and/or validity of the order dated 1-2-2007 passed by the learned Additional District Judge, Mapusa was set aside.

2. The appellants herein are heirs and legal representatives of the original ~ plaintiff Maria Menezes D'Sa. She filed a suit in the year 1982 against the respondents herein praying inter alia for the following relief:

(a) The plaintiff and Defendants 3 to 13 be decreed and declared to be the rightful owners of the suit property.

(b) Defendant 1 may be decreed and ordered to vacate the structure admeasuring about 5 x 3 sq m illegally built by him in the suit property.

(c) Defendant 1 be decreed and ordered to demolish the said structure admeasuring 5 x 3 sq m illegally built by him in the suit property.

(d) Defendants 1 and 2, their agents, servants, representatives and all other persons acting for and on their behalf be restrained permanently by a decree of permanent injunction, from interfering in any manner with the possession of the plaintiff and Defendants 3 to 13 of the suit property including the residential house existing therein or any portion thereof.

(e) Costs of this suit may be awarded.

if) Any other relief as the Hon'ble Court deems fit and proper.

3. Despite the fact that the suit filed by the plaintiff was not only for herself but also on behalf of Defendants 3 to 13, the learned trial Judge set the said suit for ex parte hearing on 15-1-1997 so far as Defendants 3 to II were concerned and on 19-4-1997 so far as Defendants 12 and 13 were concerned. The plaintiff died in England on 2-11-2004.

4. The appellants herein are ordinarily not residents in India and reside abroad. They having come to learn about the pending proceeding, informed the Court about the death of the original plaintiff on 7-3-2006. They, however, filed an application for setting aside the ex parte decree on or about, 6-7-2006. The said application was dismissed. Thereafter, they filed an application for transposition of Defendants 3 to 13 to the category of the plaintiff on 14-3-2006. The learned trial Judge allowed the said application.

5. As noticed hereinbefore, the revision application filed there against by the respondent has been allowed. The trial court dismissed the application and an appeal was preferred there against which was allowed. The High Court, however, while setting aside the order of the trial court placed on record that an application to bring on record the heirs and legal representatives of the plaintiff should be filed within 90 days from the date of death of the plaintiff and if such an application is not filed within the aforementioned period, an application for setting aside the abatement has to be filed within 60 days thereafter, on the premise that the said period had lapsed and furthermore no sufficient cause was shown for condonation of delay, particularly having regard to the fact that the suit was set for ex parte hearing against them and furthermore, a valuable tight had accrued in favour of the respondents, the delay in filing the said application was not condoned.

6. Learned counsel for the appellants would submit that the High Court committed a serious error in passing the impugned order insofar as it failed to take into consideration that the non-mentioning or wrong mentioning of a provision of law did not take away the jurisdiction of the court below from passing an appropriate order if the source of jurisdiction is traceable under the Code. It was urged that the power of the Court to bring on record the heirs and legal representatives of the deceased plaintiff should have been liberally construed and keeping in view the fact that the suit was filed also on their behalf.

7. Learned counsel appe