V.B.Gupta, J.

Appellants have filed this appeal against order dated 23rd April, 2007, passed by Additional District Judge, Delhi vide which it was held that suit filed by appellants stood abated.

2. Brief facts as alleged are that respondent No.1, entered into an agreement to sell dated 14th November, 1979 with Sh. Tej Singh, (father/Grandfather of the appellants), in respect of property bearing No.C-23, Chirag Enclave, New Delhi. Sh. Gulzari Lal Nanda, father of respondent No.1, assured Sh. Tej Singh that respondent No.1 would honour the commitment made in the agreement. Since completion of sale was delayed and in the meantime, Sh. Tej Singh died, appellants filed suit for specific performance against respondent No.1 and Sh. Gulzari Lal Nanda (who was defendant no. 2 in the suit)

3 In or around September 1983, Mr. Vivek Nanda, s/o. respondent No.1 filed an application for impleadment on the ground that suit property is HUF. Court vide order dated August 29, 1984, allowed that application and he was, impleaded as respondent No.2. In the meanwhile, Sh. Gulzari Lal Nanda died on January 15, 1998.

4. On account of pecuniary jurisdiction, matter was transferred to District Court to be listed on May 6, 2004. Appellants being unaware could not appear before the court. Counsel for respondent No.1, for the first time informed the Court on September 20, 2004, that Sh. Gulzari Lal Nanda has died.

5. The suit was dismissed in default on October 26, 2004.

6. Appellants became aware of the dismissal of the suit only on November 30, 2004 and filed application for restoration. On inspection of record it was found that Sh. Gulzari Lal Nanda has passed away and accordingly, an application under Order 22 Rule 4 of Code of Civil Procedure (for short as „Code?) was filed for impleading his wife, in place of deceased Sh. Gulzari Lal Nanda.

7. Respondents filed reply to that application stating that suit has already abated w.e.f. April 16, 1998.

8. Appellants thereafter, filed an application under Order 22 Rule 9 of the Code seeking setting aside of abatement and for bringing Smt. Laxmi Nanda on record, in place of deceased Sh. Gulzari Lal Nanda.

9. Trial court, vide impugned order disallowed the application of the appellants for setting aside the abatement.

10. It is contended by learned counsel for appellants that deceased Sh. Gulzari Lal Nanda, is survived by his wife and his son. The son is already on record arrayed as respondent No.1 and thus, the suit could not have abated.

11. Other contention is that counsel for defendants had appeared for both the defendants (i.e. defendant No.1 and defendant No.2, Sh. G.L. Nanda) on 16th May, 2001, 17th May, 2001 and 18th May, 2001 in the trial court but never informed the Court that defendant No.2 had expired and they are not appearing for defendant No.2. Appellants were informed about the demise of defendant No.2, for the first time on September 20, 2004 and application for substitution for bringing legal heirs on record was filed thereafter.

12. Other contention is that appellants never prayed for any decree of Specific Performance against defendant No.2, Sh. Gulzari Lal Nanda. Relief of Specific Performance is only against respondent No.1 herein. Lastly, appellants never sued deceased defendant No.2 and respondent No.1, as two coparceners. Since respondent no.1, who is the legal heir of deceased defendant No.2, was already on record, the suit could not have abated.

13. In support of its contentions, learned counsel for appellants cited following judgments,; (i) Mahabir Prasad v. Jage Ram and Ors.; AIR 1971 SC 742. (ii) Mohd. Hussain (Dead) By LRs & Ors. v. Occhavlal and Ors.;(2008) 3 SCC 233 and; (iii)Bhavsingh (Dead) by LRs. v. Keshar Singh and Ors.; AIR 2003 SC 3199.

14. On the other hand, it is contended by learned counsel for respondents (who has filed written arguments also) that suit of the appe