Point of Law:
Article 123 provides 30 days time for filing application to set aside the ex-parte decree from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree

JUDGMENT :

Order on Civil Misc. Delay Condonation Application No.268647 of 2012.

1. The delay condonation application has been filed to condone the delay in filing the Substitution Application No.268649 of 2012 to substitute the legal heirs of respondent no.3 Sariful Hasan, who died on 06.03.2009 and legal heirs of respondent no.4, Nazmul Hasan, who died on 06.06.2010.

2. A joint affidavit in support of aforesaid two applications has been file by one Abul Hasan. The aforesaid substitution application has been filed on 10.09.2012. The reason for delay has been stated in paragraph 5 to 8 of the affidavit which are being extracted hereinbelow:-

“5. That subsequent to the death of the aforesaid respondents although substitution application, for bringing their heirs on record, was filed on behalf of the petitioner in case no. 54/2008 (Shamsul Hasan Versus Saliya Khatoon) which is pending before the Civil Judge (Jr. Div.) Khaga District Fatehpur but due to inadvertent mistake this substitution application, immediately after death of the deceased/respondents, could not be filed in the present writ petition.

6. That recently on 20.4.2012 an abatement application with regard to the deceased respondent no.3 and 4 was received in the office of the learned counsel for the petitioners whereby the deponent received information for taking necessary steps and for filing of reply to the same.

7. That immediately thereafter the deponent rush to Allahabad, informed the aforesaid necessary facts to his learned counsel immediately where after without any further delay, the present substitution application is being filed.

8. That the delay occurred in filing the present substitution application is neither intentionally nor knowingly as such same may be condoned and present substitution application may be allowed setting aside the abatement if any.”

3. The respondent no.2 filed counter affidavit to the aforesaid delay condonation application contending inter alia that petitioner in paragraph 5 of the affidavit has not stated the date of filing the substitution application in Case No.54 of 2008 (Shamsul Hasan Vs. Saliya Khatoon) pending before Civil Judge (Junior Division), Khaga, District Fatehpur. It is further stated that the deceased and petitioners belonged to one family and were neighbours, and petitioners had full knowledge about the death of respondent nos.3 & 4. Thus, the delay in filing the substitution application was deliberate and intentional. It is further stated that the abatement application filed by respondent no.2 was served in the office of counsel for petitioner on 20.04.2012, and petitioners filed substitution application on 09.09.2012 after 114 days from the date of receiving the abatement application without stating the cause for delay of 114 days in filing the substitution application. On the basis of aforesaid pleadings, respondent no.2 has prayed for dismissal of the delay condonation application.

4. I have considered the rival submissions of the parties and perused the record.

5. The respondent no.3 had died on 06.03.2009 and respondent no.4 had died on 06.06.2010, therefore, there was delay of about more than three years from the date of death of respondent no.3 and more than two years from the date of death of respondent no.4 in filing the substitution application. The paragraph 5 of the affidavit filed in support of the delay condonation application, extracted above, clearly reveals that petitioners had knowledge about the death of respondent nos.3 & 4 and they had filed the substitution application to bring the legal heirs of respondent nos.3 & 4 on record in Case No.54 of 2008 (Shamsul Hasan Vs. Saliya Khatoon), but no reason has been given by the petitioners in the affidavit which prevented the petitioners from filing the substitution application in the present case.

6. Further, it is also admitted on record that petition