Hon’ble Rajes Kumar, J.—It appears that respondent No. 1 died on 10.4.2004 during the pendency of the 1st appeal. Since no substitution application was filed and dead person was made party an application for abatement of the appeal against the legal heirs of respondent No. 1 has been filed. Lateron, appellants filed the substitution application on 3.9.2010 on which the Court has issued notices to the proposed legal reprsesenatives of the deceased on 18.11.2011. The notices were sent by ordinary post as well as by registered post and an application for setting aside the abatement application has also been filed on 7.4.2011. In paragraph-3 of the substitution application, it is stated that the counsel for the respondents did not inform the factum of death to the Court as required under Order 22 Rule 10A of the Code of Civil Procedure (herreinafter referred to as “C.P.C.”) and as such the appellants could not know about the death of respondent No. 1. Learned counsel for the respondents informed the deponent about the death of respondent No. 1 on 31.8.2010 and then the deponent enquired about the legal heirs of respondent No. 1 and then filed the substitution application. It is stated that the application is in time, however, if there is any delay, the same may be condoned.

2. Counter-affidavit has been filed by the respondnets. In paragraph-3 of the counter-affidaivt, it is stated that respondent No. 1 has died on 10.4.2004 and not during the pendency of the second appeal. She died before the order has been passed in Civil Appeal No. 232 of 1998 on 6.9.2006 as such the present second appeal has been preferrred against the dead person as such the substitution application is not maintainable.

3. Rejoinder-affidavit has been filed. In paragraph-4 of the rejoinder-affidait, the factum of date of death mentioned in the counter-affidavit has not been disputed. It is stated that the fact was never brought to the notice of the lower Court nor the counsel for the respondents ever informed the lower appellate Court about the death of late Smt. Krishna Devi; the respondnet No. 1 who according to respondent No. 2 died on 10.4.2004 during the pendency of Civil Appeal No. 232 of 1998. Information, as required under Order 22 Rule 10A of C.P.C. was not given and as such the appellants could not know about the death of respondent No. 1. Ms. Kamla Misra, learned counsel for the respondnets in the present second appeal informed the deponent about the death of respondent No. 1 on 31.8.2010 and then the deponent enquired about the legal heirs of respondent No. 1 and as such the present substitution application has been filed and the same is maintainable.

4. Sri A.K. Srivastava, learned counsel for the appellants submitted that Order 22 Rule 10A of C.P.C. provides that whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party. In the present case, the pleader has not informed about the death of respondent No. 1 before the first appellate Court therefore no steps have been taken to substitute the heirs. He further submitted that Smt. Krishna Devi was daughter of late Munni Lal, who was the defendant in the suit. Sri Bhagwati Prasad, son of late Munni Lal, is arrayed as respondent No. 2. He is still alive. Therefore, having regard to the nature of the suit and the issue involved, the abatement of the appeal against the heirs of respondent No. 1 will have no ultimate effect. He submitted that a liberal view should be taken in setting aside the abatement. Reliance is palaced on the decision of the Apex Court in the case of State of Madhya Pradesh v. S.S. Akolkar, AIR 1996 SC 1984.

5. Sri Arvind Kumar Shukla, learned counsel for the respondents submitted that the appeal has been filed against the dead person, therefore Order 22 Rule 10A of C.P.C. does not apply in the present case and the appeal stands