ORDER

Re. Interlocutory Application No. 1487 of 2007 and Interlocutory Application No. 1488 of 2007

Interlocutory Application No. 1487 of 2007 has been filed under Order 22, Rule 3 read with Rule 9 of the Code of Civil Procedure on behalf of the widow, two sons and two daughters of the sole appellant Lala Yadav stating therein that during the pendency of the First Appeal, the sole appellant Lala Yadav died on 14.6.2005 leaving behind him his heirs and legal representatives, fully detailed in Paragraph No. 3 of the aforesaid Interlocutory Application. In fact, the aforesaid heirs and legal representatives of the deceased appellant are the applicants in the aforesaid Interlocutory Application. A prayer has been made on their behalf in the aforesaid Interlocutory Application that the name of the sole deceased appellant may be expunged from the array of the parties of the memorandum of appeal and they may be substituted in place of the deceased sole appellant, after setting aside the abatement, if any, of the appeal, and further, they may be permitted to prosecute the First Appeal.

2. I.A. No. 1488 of 2007 has been filed on behalf of the applicants under Section 5 of The Limitation Act, 1963 for condoning the delay in filing the substitution petition vide I.A. No. 1487 of 2007 on the grounds mentioned there in that application.

3. Learned counsel appearing on behalf of the applicants has submitted that after the death of the sole appellant, the applicants came to know about the pendency of the present First Appeal for the first time on 22.9.2005, when they received a letter by the counsel of the appellant, and immediately thereafter on 23.9.2005, they contacted the learned counsel appearing on behalf of the original deceased appellant. It has been asserted on behalf of the applicants that prior to 22.9.2005, they had no knowledge or information about the pendency of the first appeal before this court, as the sole appellant himself was looking after the appeal and was making necessary pairvi before this Court. It is further submitted that after making necessary arrangements and execution of Vakalatnama by all the applicants, they acted promptly and got I.A. No. 5120 of 2005 filed on 6.10.2005 seeking their substitution in place of the deceased sole appellant. However, he has fairly conceded that the order passed on 17.1.2006 by the learned Lawazima Board for service of copy of the aforesaid Interlocutory Application on the learned counsel appearing on behalf of the respondents could not be complied with. According to him, in the meantime, the proposed heirs had taken away the entire file from the learned lawyer on the ground that a talk was going on between the parties for compromise.

4. It is not under dispute that on account of non-compliance of the aforesaid order dated 17.1.2006, the matter was listed before a Bench of this Court, whereafter by an order dated 4.8.2006 one week’s further peremptory time was granted to the applicants for complying the aforesaid order dated 17.1.2006. It is pleaded that since the entire file was taken away by the clients, therefore, the aforesaid order dated 4.8.2006 passed by a Bench of this Court could not be complied with, as a result thereof I.A. No. 5120 of 2005 stood dismissed on account of non-compliance of the Court’s peremptory order.

5. Learned counsel appearing on behalf of the applicants has contended that despite dismissal of the aforesaid I.A. No. 5120 of 2005 and despite death of the sole appellant, a note of abatement of the First Appeal has not been recorded. According to him, when talk of compromise failed, then on 6.3.2007 the proposed heirs came back to Patna with the entire file informing their counsel that compromise could not be arrived at between the parties. Accordingly, on 9.3.2007, I.A. No. 1487 of 2007 as also I.A. No.1488 of 2007 were filed before this Court for the reliefs indicated above.

6. Learned counsel appearing on behalf of the applicants has further submitted that af