An application to set aside the abatement of an appeal must be filed within the period prescribed by law and must disclose sufficient cause for the delay.

( 1 ) EVIDENCE having been recorded in respect of the application (C. M. 1536 of 1971) the parties counsel have been heard at length. The application was preferred under Order 22, rules 3 and 4 read with rule 11 of the Civil Procedure Code, under the date 2nd of September, 1971. It was preferred in the course of Regular Second Appeal No. 178-D of 1966. A reference to the memorandum of appeal discloses that the address of the single respondent given therein was "raghunath Gupta s/o Mahi Ram, resident of 26, Beadanpura, Karol Bagh, Delhi " The appeal was admitted in the year 1966. Raghunath Sahai respondent died four years thereafter.

( 2 ) NO counsel is expected to be every time aware of the death of any of the parties to the litigation in his charge A counsel may be unaware of the death of his own client. It is the choice of legal representatives of a client to inform his counsel about the demise. It is rightly stated in the application by Mr. Bishamber Dayal that he learnt about the death of the respondent from the respondent s counsel in July, 1971. There is nothing to controvert that assertion. The statement of Shri Ram Nath Chitkara, Occupation Tahsildar, Delhi Development Authority, recorded on the 5th May, 1972, supports para I of the application inasmuch as he deposed that a letter, dated the 12th July, 1971, had been received from Mr. Bishamber Dayal, stating that Raghunath Sahai respondent, according to his information had expired. The counsel had requested for the information regarding the legal representatives of the deceased respondent.

IN para 2 of the application it is stated that after the information regarding the demise of the respondent was received, officers of the appellant tried to verify the information and to find out the names and add-ess of the legal representatives cf the deceased. In para 3 of the application three legal representatives of the deceased are mentioned. At item (a) is the name of Smt. Shanti Devi, widow of the deceased ; at item (b) is the name of Shri Narinjan his son and item (c) Miss Raghunath Sahai is mentioned as a daughter. May be there was difficulty in finding out the exact name of the daughter.

NO circumstances were narrated in para 4 of the application detailing as to why the death of the respondent was unknown to the appellant and as to what efforts had exactly been made to find out the names of the legal representatives. No circumstances were detailed urging that in terms thereof the appellant had sufficient cause for not making the application within the period of limitation.

IN para 5 of the application it has been stated that the right to sue survived against the legal representatives and the prayer was that they be brought on the record and the appeal be proceeded with.

( 3 ) THE application was contested. The Preliminary objection raised on behalf of Shri Narinjan son of the deceased Raghunath Sahai was that the application was barred by time, and that, the appeal was liable to be dismissed as it had abated. It was stated that, respondent Raghunath Sahai had died on the 19th of Jur. e, 1970.

( 4 ) AS is stated earlier, the parties were allowed to lead evidence. The appellant examined the Tahsildar Shri Ram Nath Chitkara. Shri Narinjan son of the deceased respondent appeared as his own witness.

( 5 ) MR. Bishamber Dayal faced with the abatement of the appeal urged that he had filed the application in the circumstances stated therein and the information regarding the demise of the respondent had been given to him by the counsel for the respondent. The learned counsel urged that although the application had been preferred under order 22, rules 3 and 4, read with rule 11 of the Civil Procedure Code it deserved to be treated as an application under order 22, rule 9 of the said Code. Where a court finds that an application has been preferred under order 22, rules 3/4 of the Code but the appeal has in fact abated before the filing of the application and where the a