1. Heard Mr. L. Bora, learned counsel for the petitioner and Ms. P Bhattacharya, learned counsel for the respondents No. 1 to 6.

2. The sole appellant, Late Mari Priya Barman preferred the connected second appeal on or about 01.02.1999 against the judgment and decree passed by the learned District Judge, Nalbari on 24.09.1998 in Title Appeal No. 14/1998 against the present respondents. The respondents entered appearance. The sole appellant died on 24.07.2002 and as a consequence owing to non substitution of the said deceased appellant by her legal heirs, the second appeal had abated and to that effect, order dated 22.12.2006 was passed by this court. In the mean time, the conducting Senior Counsel, Late N Chakraborty died in the year 2010. Prior to his death, he was suffering from illness beginning from the year 2007. Later on, the present petitioners being the legal heirs of the sole appellant on 04.02.2013 preferred an application under Section 5 of the Limitation Act, 1963 for condonation of the delay in filing the petition for substitution of the sole appellant to condone the delay of 6 years 4 months 12 days in filing the said application for substitution. The said application was registered as MC No. 997/2013. On 22.01.2016, it came to the notice of the learned conducting counsel on behalf of the present petitioners that the period for condonation of delay ought to have been calculated from the date of death of the sole appellant instead of one taken into consideration from the date on which the appeal was ordered to be abated i.e. on 22.12.2006. Vide order dated 22.01.2016, the petitioners were allowed to remove the defect within 10 days. However, on perusal of the case records of MC No. 997/2013 it is seen that no such rectification was done. Instead, the petitioners on 16.10.2015 filed this application for condonation of delay of 13 years 2 months 21 days in substituting deceased appellant by her legal heirs. The subsequent petition is registered as I.A. 1030/2016 which has been taken for its disposal.

3. It is pertinent to mention here that the fact of filing of the said application of MC No. 997/2013 is mentioned in this application.

4. Mr. Bora submits that the present petitioners were not aware with respect to the pendency of the connected second appeal. But on the next breathe, Mr. Bora submits that the elder son of the deceased appellant came to Guwahati on 20.01.2013 to enquire the matter and suddenly met the junior counsel of Late Senior counsel N Chakraborty who was conducting the appeal. The said junior counsel informed one of the sons of the deceased appellant that the appeal was dismissed on abatement. Mr. Bora fairly submits that there are negligence on the part of the present petitioners and as such, bringing into reference about the actual facts on record, Mr. Bora submits further that the grounds be treated to be sufficient and the delay be condoned.

5. Ms. Bhattacharya, on the other hand, opposed the submission of Mr. Bora. In addition to that, objection was filed against the application. By way of the said objection, Ms. Bhattacharya submits that there is no explanation with regard to the causes as to why there was delay in not bringing the substitution application at least from the date of death i.e. 24.07.2002 to 22.12.2006 and also from 22.12.2006 to 20.01.2013. Non explanation of the said period, is itself not sufficient to condone the delay at least from the date of the death of the appellant till the date of filing of the application for condonation. As such, she sought for dismissal of the petition.

6. Considered the submissions of the learned counsels. Abatement of a suit or an appeal is the prescription of law. Abatement of an appeal indicates itself the closure/ forfeiture of the right to sue by a party. Such forfeiture of the right on the part of the legal heirs of the deceased appellant on the other hand accrues a right on the respondents and such right to sue can be retrieve