JUDGMENT :

BIBHAS RANJAN DE, J.

1. Both the applications have been filed with a prayer for condonation of delay in filing the applications under Section 146 of the Code of Civil Procedure.

2. Learned counsel appearing on behalf of the appellant/applicant has submitted that there was delay of 150 days and grounds of delay have been explained in paragraphs 4 and 5 of CAN 6 of 2024 and paragraphs 5 and 6 of CAN 7 of 2024. It is submitted that the Memorandum of Appeal was drafted by the learned counsel relying on the judgment and decree passed by the learned Trial Court and that was an inadvertent mistake on the part of the learned counsel and thereby overlooking the knowledge of death of the respondents Panna Lal Chandra and Kanchan Halder.

3. In both the applications identical grounds were delineated, i.e., drafting the Memorandum of Appeal after perusing the judgment and decree passed by the learned Trial Court.

4. Learned counsel appearing on behalf of the respondents has filed affidavit-in-opposition and by referring to paragraph 5 of CAN 6 of 2024 and paragraph 6 of CAN 7 of 2024 submitted that the appellant had sufficient knowledge prior to filing of the appeal of the death of the respondents Panna Lal Chandra who died on 19th February, 2018 and Kanchan Halder who died on 19th February, 2021. In support of his contention, he referred to the documents annexed with the affidavit-in-opposition showing the death of the respondents Panna Lal Chandra and Kanchan Halder in connection with Misc. Case No.90 of 2016.

5. However, it is not disputed that the said Panna Lal Chandra and Kanchan Halder died in the interregnum period after disposal of the First Appeal and prior to filing of this Second Appeal.

6. I have gone through the contents of both the applications, being CAN 6 of 2024 and CAN 7 of 2024. In both the applications for condonation of delay, appellant did not deny regarding knowledge of death of the respondents Panna Lal Chandra and Kanchan Halder. The explanation delineated in the applications at paragraph 5 of CAN 6 of 2024 and paragraph 6 of CAN 7 of 2024 shows that they came to know about the information of death of the said Panna Lal Chandra and Kanchan Halder firstly on 18th June, 2024 from a letter received from the advocate representing the respondents.

7. Be that as it may, it is not denied that the names of the deceased respondents were recorded in the judgment and decree of the learned Trial Court and according to learned counsel appearing on behalf of the appellant the learned advocate-on-record drafted the Memorandum of Appeal after perusing the judgment and decree of the learned Appellate Court.

8. Learned counsel appearing on behalf of the respondents has relied upon a judgment of State of West Bengal v. Manisha Maity,  AIR 1965 Cal 459 and submitted that when the Second Appeal was filed, the respondents Panna Lal Chandra and Kanchan Halder were not alive. Therefore, this appeal is a still-born and no appeal in the eye of law and it is further submitted, in that case, a fresh appeal has to be filed along with an application for condonation of delay for the period from when limitation to file Second Appeal expired.

9. In opposition to that, learned counsel appearing on behalf of the appellant relied upon a case of Saraswati Shaw @ Menu Shaw & Ors. v. Laxmi Moni Shaw @ Laxmi Rani & Anr.  (2005) 3 CHN 373 and submitted that the principle enunciated in Manisha Maity (supra) has no application in the case at hand. Saraswati Shaw @ Menu Shaw (supra) deals with an appeal where there are more than one appellants who represent the appeal unlike the case of Manisha Maity (supra) wherein the appeal was filed against the sole defendant.

10. Here in this appeal, there are several respondents apart from the deceased Panna Lal Chandra and Kanchan Halder. Therefore, in view of the ratio of Saraswati Shaw @ Menu Shaw (supra), I am unable to hold that this appeal was still-born when it was filed without incorporating the legal heirs of