The Court emphasized the need for a justice-oriented approach in condoning delay and allowed a composite application for setting aside abatement of appeal on condonation of delay without requiring a separate application under Section 5 of the Limitation Act.

JUDGMENT :

1. CAN 11594 of 2011 is an application filed by the defendants/appellants/applicants praying for amendment of the memorandum of the application for review by incorporating the names of the heirs and legal representatives of the original plaintiff/respondent, since deceased as plaintiff/respondent/opposite parties No.1(a) to 1(d) upon condonation of delay.

2. CAN 11595 of 2011 is an application filed by the defendants/appellants/applications seeking condonation of delay of 225 days for presentation of the memorandum of review.

3. Since both the above mentioned applications are closely connected upon each other, I propose to dispose of the said applications by a composite order as hereunder:-

4. The applicants were defendants of Title Suit No.70 of 1976 filed by one Kalipada Pal, since deceased praying for declaration that the suit properties mentioned in schedule Kha of the plaint are Benami property of his father and deed of gift executed by one Lilabati in favour of the defendants was void. The said suit was dismissed on contest by the learned trial judge. The original plaintfff/respondent since deceased preferred an appeal before the lower appellate court which was registered as Title Appeal No.281 of 1981. The said appeal, however, was allowed on contest. As a result, the judgment and decree of dismissal passed by the learned trial court in Title Suit No.70 of 1976 was set aside and the suit was decreed. The defendants/appellants preferred an appeal before this Court being SA No.170 of 1994. This Court by a judgment dated 9th August, 2008 and decree dated 9th September, 2008, dismissed the appeal on contest. Against the said judgment and decree passed by a Coordinate Bench of this Court, the defendants/appellants preferred review which is registered as RVW 100 of 2009.

5. It is stated by the petitioners that the memorandum of review was filed against Kalipada Pal, since deceased on 22nd May, 2009. The petitioners had no knowledge that the said Kalipada Pal died on 28th January, 2009 leaving behind some legal heirs and representatives whose names are stated in paragraph 10 of the application. Therefore, by filing the instant application, the petitioners have prayed for amendment of cause title of the memorandum of review by incorporating the names of the legal heirs and representatives.

6. In the application for condonation of delay which is registered as CAN 11595 of 2011, it is stated by the petitioners that SA No.170 of 1994 was dismissed by a Coordinate Bench of this Court on 9th September, 2008. On the date of delivery of judgment, the petitioners missed the list and only on 21st January, 2009, they came to know about dismissal of the appeal by a Coordinate Bench of this Court. Immediately, the petitioners applied for certified copy of the said judgment and decree passed in SA No.170 of 1994 and it was made available on 29th April, 2009. The learned Advocate for the petitioners advised them to file a review application in the month of May 2009. Accordingly, the application for review was filed on 22nd May, 2009. In this process there was delay of 225 days in filing the review application. It was also contended by the petitioners that the review application was filed inadvertently against the sole plaintiff/respondent Kalipada Pal, since deceased. The defendants have no knowledge about death of the said Kalipada Pal.

7. Thus, it is contended by the petitioners that delay of 225 days in filing the review application was caused due to the reasons, first, the petitioners did not know the date of delivery of the judgment in SA No.170 of 1994. They came to know about delivery of such judgment only in the month of January, 2009 and obtained certified copy of the same on 29th April, 2009. Secondly, the petitioners could not take immediate step to file review against the judgment passed in S.A. 170 of 1994 due to financial hardship and lack of proper advice by their learned Advocate.

8. Under such circumstances, petitioners h