The court has the discretion to condone delay in substitution of legal representatives if it is in the interest of justice.

JUDGMENT :

A.K. Padhi, J. - Plaintiff is the appellant. Appeal arises out of a suit for partition. The admitted relationship as per the genealogy is as follows :

Brusabha

- W. Nirasa Bewa (D. 2)

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Aditya (died) Tirtha (son) Mathura (son) Uttama (daughter)

in 1980) (D. 1) (D. 3) died (D. 4)

= Tilotama on 25-4-1982

During pendency of the suit defendant No. 2 died. On 25-4-1982 defendant No. 3 died leaving behind her husband, sons and a daughter as her legal representatives. The advocate for the defendants filed a memo intimating the Court regarding the death of defendant No. 3. In spite of the intimation by the advocate for the defendant No. 3, the plaintiff did not take any step for substitution in time. An application for substitution was filed without being supported by an affidavit. Only on 16-11-1982 after the abatement had set in, applications for substitution, to set aside the abatement along with an application u/s 5 of the Limitation Act were filed. The advocate for the defendant filed objection asserting that as plaintiff after being duly intimated about the death of defendant No. 3 has not brought the legal representatives on record in time, the suit has abated, so far as defendant No. 3 is concerned and she should not be permitted to bring the legal representatives of defendant No. 3 on record. Application for substitution of defendant No. 3 was rejected on 21-12-1982. On 25-2-1983 the trial Court pronounced the judgment holding that:

(a) the plaintiff is entitled to a share, she being the widow of the co-sharers ;

(b) the suit has abated so far as defendant No. 3 is concerned who had share in the properties; and

(c) the suit being a suit for partition, |t shall abate as a whole; and with the above findings dismissed the suit. This finding of the teamed trial Court dismissing the suit, is challenged in this First Appeal.

2. During pendency of the First Appeal, another application had been filed to bring the legal representatives of deceased defendant No. 3 on record. Notice has been duly served on this application.

3. Though notices have "been served on the respondents, perso- nally, there is no appearance on behalf of respondents-defendants.

4. The learned advocate for the appellant submits that though it is true that there were laches on the part of the plaintiff, she being a widow, the trial Court should have condoned the delay, set aside the abatement and substituted the legal representatives of defendant No. 3. It is further submitted that the Coda of Civil Procedure is designed to facili- tate justice and further its ends The substitution should have been allowed for advancement of justice. For such a submission reliance has been placed on a decision reported in AIR 1983 S. C. 35 (Bhagwan Swaroop and Ors. v. Mool Chand and others), in the said decision Justice Desai has observed :

"...It is equally true that the appellants were negligent in moving the proper application. We would not question the findings of the High Court that appellant Nos. 2, 3 and, 4 knew about the death of the deceased respondent No. 1. This being a suit for partition of joint; family property, parties are closely Inter- related and it is reasonable to believe that atleast some of the' appellants must have attended the funeral of deceased respon- dent No. 1, as contended on behalf of the contesting respondent No. 2. There is some force in the contention that when a specific provision is "made as provided in 0. 22, R, 4, a resort to the general provision like 01, R. 10 may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same In Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, ), this Court observed that a code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in