Ignorance of the plaintiffs about the death of the defendant should be taken into consideration for condonation of delay in applying for setting aside abatement.

P. K. MOHANTI, J.

( 1 ) THIS Civil Revision is directed against ah order rejecting the plaintiffs' prayer for substitution in place of a deceased defendant and for setting aside abatement of the suit.

( 2 ) IN Title Suit No. 317/78 on the file of the learned Munsif of Puri, the advocate for defendant No. 1 filed a memo on 3-12-1980 intimating the Court that his client had died on 1-9-1980. The case was posted to 30-1-1981 for hearing on the memo. On 30-1-1981 the plaintiffs filed an application for substitution of the legal representative of the deceased defendant No. 1. By a separate application supported by affidavit, they also prayed for setting aside abatement of the suit. It was alleged, in the application for setting aside abatement that the plaintiffs came to know about the death of defendant No. 1 on 1-9-1980. By a subsequent affidavit dated 3-2-1981 the plaintiffs stated that they came to know about the death of defendant No. 1 on 3-12-1980 when a memo to that effect was filed by the Advocate for defendant No. 1, but by mistake the date of their knowledge about the death was mentioned as 1-91980 in their earlier application dated 30-1-1981. The learned Munsif rejected the prayers for substitution and setting aside abatement mainly on the ground that the plaintiffs had come to know about the death on 1-9-1980 as mentioned in their application dated 30-1-1981 and in spite of such knowledge they did. not apply for substitution before 30-11-1980 and that there was no application under Section 5 of the Indian Limitation Act for condoning the delay.

( 3 ) IT is urged in this civil revision that in the plaintiffs' application dated 30-11981 the date of knowledge about the death of defendant No. 1 was wrongly typed as 1-9-1980 instead of 3-12-1980 and that this fact having been explained by the subsequent affidavit dated 3-2-1981, the learned Munsif acted with material irregularity in refusing to condone the delay.

( 4 ) AS mentioned earlier, defendant No. 1 died on 1-9-1980 and intimation about the death was given by his Advocate on 3-12-1980. The limitation for filing the application for substitution expired on 30-11-1980 and the last date for filing the application for setting aside abatement was 29-1-1981. The applications for substitution and for setting aside abatement were filed on 30-1-1981. Thus there was delay of only one day. According to sub-rule (5) of Rule 4 of Order 22 c. P. C. ignorance about the death should be taken into consideration for condonation of delay in applying for setting aside abatement. On a careful reading of the two applications filed by the plaintiffs on 30-1-1981, it appears that the plaintiffs came to know about the death of defendant No. 1 on 3-121980 when the advocate for the defendant No. 1 filed a memo, intimating about the death. It was clearly stated in the petition that the plaintiffs came to know about the death from the memo, filed bv the advocate for defendant No. 1 and thereafter they made enquiries to ascertain the names and addresses of the legal representatives. The memo, was admittedly filed on 3-12-1980. The position was clarified in the plaintiffs' affidavit dated 3-1-1981. The learned munsif went wrong in holding that, the date of the plaintiffs' knowledge about the death was 1-9-1980. The ignorance of the plaintiffs about the death of defendant No. 1 was not taken into consideration for condonation of delay.

( 5 ) ALTHOUGH no formal application under Section 5 of the Indian Limitation Act was filed, yet the plaintiffs in their application for setting aside abatement stated that they had sufficient cause for condonation of delay. It was stated in the application that after the memo was filed they made enquiry and came to know only on 29-1-1981 that the defendant No. 1 was dead and that he had left behind him the persons named in the application as his legal representatives. They stated that they were unable to collect the information about the legal representatives be