JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. No one turns up on behalf of the respondents in-spite of repeated calls. Hence, this appeal is heard ex-parte.

3. This appeal has been filed by the appellants under Section 100 of the Code of Civil Procedure against the impugned order and decree dated 28.06.2005 passed by the Additional District Judge FTC-III, Bokaro in Title Appeal No. 17 of 1999 whereby and whereunder, the learned first appellate court has dismissed the appeal filed by the appellants as the same has abated as a whole.

4. The brief facts of the case is that the respondents herein filed Title Suit No. 36A of 1991-1A of 1998 with a prayer to declare the allotments sought to be made by the defendant nos.1 and 2 in favour of defendant nos.3 to 8 is arbitrary, discriminatory, fake, illegal and void with further declaration that plaintiffs being a displaced person is only entitled to get the first preference in allotment and grant of permanent injunction.

5. The learned trial court vide its Judgment dated 8th March, 1999, partly decreed the suit on contest against some of the defendants and ex-parte against the rests of the defendants and declared that the rejection of the application of the plaintiffs for the allotment of a hotel plot in his favour by the defendant nos. 1 and 2 is wrong and illegal and further declared that the plaintiff is entitled for the allotment of a hotel plot similar to that of the defendant no. 4 of the suit considering his similar status of a displaced persons on the terms and condition as laid down in the notification for the same dated 24.04.1989.

6. Being aggrieved by the said impugned judgment and decree passed by the learned trial court, the appellants preferred Title Appeal No. 17 of 1999 in the court of District Judge, Bokaro which was ultimately disposed of by the impugned order of abatement and decree. Before the first appellate court, during the pendency of the said Title Appeal No. 17 of 1999, the respondent no. 1-plaintiff died on 03.06.2003 leaving behind his wife, two sons and one daughter and he has also furnished the names of the legal representatives of the deceased respondent no. 1 under Rule 10A of Order XXII on 21.07.2003 but the copy of the same was not served upon the counsel for the appellant namely Mr. Anwarul Hussain appearing in the record on 21.07.2003. The appellants filed a petition on 21.01.2004 for substitution of the heirs and legal representatives of the deceased respondent no. 1 along with a petition under Section 5 of Limitation Act supported with affidavit for condonation of delay on the ground that as the conducting Advocate Mr. Anwarul Hussain has left Bokaro unnoticed and has shifted his practice somewhere else without conveying the fact regarding the death of the respondent no. 1 to the appellants and the subsequent lawyer Mr. Sanjay Kumar Singh of the appellants who looked after the case came to know about the intimation of death of respondent no. 1 only on 13.01.2004 and the appellants for the first time came to know on 13.01.2004 about the death of the respondent no. 1-plaintiff. Hence, it was claimed that the petition for substitution of the legal representatives of the deceased respondent no. 1-plaintiff was within time. The lower appellate court took note of the fact that abatement of appeal for failure of bringing the legal representatives of the deceased respondent no. 1 on record within the prescribed period of 90 days as per article 120 of Limitation Act which entails automatic abatement of the appeal and specific order dismissing the appeal as abated is not mandatory and the appellant has to file an application for setting aside the abatement within 60 days from the date of abatement as per Article 121 of the Limitation Act and also took note of the fact that time for period of limitation automatically runs from the date of the death of the plaintiff-defendant-respondent as the case may be and not from the date of knowledge of death by