Ignorance of the death of the respondent is not a sufficient cause for setting aside the abatement of an appeal.

P. K. MOHANTI, J.

( 1 ) THIS civil revision is directed against an order of the learned District Judge of mayurbhanj-Keonjhar allowing the prayer of the appellants in Title Appeal No. 5-M of 1975 for substitution in place of the deceased respondent and for setting aside abatement.

( 2 ) THE deceased Brundaban Behera as plaintiff filed Title Suit No. 73 of 1972 in the court of the Subordinate Judge, Bari-pada against the opposite parties for declaration of occupancy right over the land described in Schedule 'a' of the plaint and for confirmation of possession over the same.

( 3 ) THE State of Orissa represented by the Collector, Mayurbhanj was the defendant No. 1 and the Sarpanch of Pedagadi Grama Panchayat was the defendant No. 2 in the suit. They filed written statement contending, inter alia, that the suit land being communal in character, no occupancy right could be acquired over the same and that after abolition of the estate, the suit land vested in the State Government and was transferred to the Pedagadi Grama panchayat.

( 4 ) THE learned Subordinate Judge decreed the suit declaring that the plaintiff would have exclusive possession over the suit land so far as rearing and catching of fish are concerned, but the villagers would have the right of user of the water of the tank for bathing, drinking and irrigation purposes in case of drought.

( 5 ) AGGRIEVED by the decision, the opposite parties jointly filed the aforesaid Title appeal before the learned District Judge on 1-3-75. During the pendency of the appeal, the plaintiff-respondent died on 24-12-76. An intimation about the death was given by the Advocate for the respondent on 25-8-77. On 28-9-77 the opposite parties filed petitions under Order 22, Rule 4 C. P. C. for substitution of the legal representatives of the deceased respondent and under order 22, Rule 9 (2) C. P. C. for setting aside the abatement. They also filed a separate petition under Section 5 of the Limitation Act for condonation of delay. The ground taken for condonation of delay was that the fact of death was not known to the opposite parties and that they came to know about the same for the first time on 25-9-77 from the memo filed by the respondent's Advocate in court. The legal representatives of the deceased respondent filed counter contending that the opposite parties were fully aware of the death of the deceased respondent and that there was no sufficient cause for condonation of delay. It was alleged that opposite party No. 2 who is the Sarpanch of Pedagadi grama Panchayat is a close neighbour of the deceased respondent and was present at the time of his death and had attended his sudhi ceremony. It was accordingly contended that the opposite parties were fully aware of the death of the deceased respondent and there was no justification for condonation of delay.

( 6 ) THE learned District Judge allowed the application for substitution and set aside the abatement after condoning the delay. The reasonings adopted by him were as follows :-

(1) There was no material on the record, except the counter affidavit filed by the proposed legal representatives, to show that opposite party No. 2 really knew about the death of the deceased respondent. (2) Even if the opposite party No. 2 knew about the death of the respondent, his knowledge cannot be utilised against opposite party no. 1 to say that the latter also had knowledge about the death; and (3) A petition for setting aside abatement can be filed within sixty days from the date of knowledge and such petition in the instant case having been filed on 28-9-77 it was in time.

( 7 ) UNDER Order 22, Rule 4 C. P. C. a duty is cast upon the plaintiff or the appellant, as the case may be, to bring on the record legal representatives of a deceased defendant or respondent where death takes place during the pendency of the lis in order that no decrees may be passed against deceased persons. If for failure to bring legal representatives on the record withi