( 1. ) THIS revision is filed against the order dated 22-11-2004 passed by VIIth additional District Judge, Gwalior in Civil Appeal No. 25-A/2004, whereby the learned Additional District Judge allowed the application of the non-applicant filed under Section 5 of Limitation Act.

( 2. ) BRIEF facts of the case are that the applicant Dindayal Bansal filed a suit for declaration and permanent injunction on the allegation that he has purchased the suit land from deceased Hariram vide registered sale deed dated 21-10-1965. Non-applicant in August, 1974 illegally encroached the said land. The Trial Court vide judgment and decree dated 12-3-1996 decreed the suit of the applicant and declared him as the owner of the land.

( 3. ) ON 7-2-2001 the non-applicant filed an appeal along with an application under Section 5 of the Limitation Act for condonation of delay on the ground that no intimation was given by his Counsel about the decision of the suit and on 11-12-2000 for the first time they came to know about the judgment and decree when applicant filed the certified copy of the judgment and decree. Thereafter the non-applicant applied for certified copy on 13-12-2000 and on 14-2-2000 they wrote a letter to the Counsel. On 18-12-2000 learned Counsel replied the said letter which was received on 10-1-2001 and in the said reply he stated that he was not engaged in the case and Shri K. B. Chaturvedi, Advocate was engaged whereas from the record of the case Shri KB. Chaturvedi appeared till 25-2-1996 and thereafter Shri M. K. Jain, Advocate appeared on behalf of the g. D. A. and he filed his Vakalatnama on 4-4-1995 and he gave wrong information that he was not appearing in the said case before the Trial Court. Due to the aforesaid reason the non-applicant could not file the appeal in time and the cause shown by authority is sufficient to condone the delay. Non-applicant orally raised an objection that during the pendency of appeal that defendant No. 2 Hariram died and no application was filed for substituting the legal heirs of Hariram and as such appeal abate and a whole and prayed for dismissal of the appeal.

( 4. ) THE Trial Court found that the non-applicant had no knowledge regarding decision of the Trial Court and through applicant when they received certified copy from the applicant on 11-12-2000 then only they came to know about the judgment and decree of the Trial Court. It is also held by the Trial court that no intimation was given by the Counsel to the non-applicant, and as such appeal was not filed in time and as such delay was condoned. In respect of the death of defendant No. 2 the Trial Court held that right to sue survives against the remaining defendants, i. e. , applicant, and hence rejected the said objection.

( 5. ) LEARNED Counsel for the applicant submitted that there is a delay of about 5 years and learned Trial Court committed error in condoning the delay. He submitted that earlier Shri K. B. Chaturvedi, Advocate was appointed by non-applicant and lateron Shri M. K. Jain, Advocate was appointed on behalf of the non- applicant and it is the duty of the Counsel to give intimation to his client about day to day proceedings and outcome of the case. He further submitted that it is the duty of the non-applicant itself to well conversant with the day to day proceedings of the case and the non-applicant is the author of the situation and the cause shown by the non-applicant is not sufficient to condone the delay.

( 6. ) LEARNED Counsel for the applicant further submitted that during the pendency of the First Appeal Hariram/defendant No. 2 from whom the non-applicant purchased the suit property, died and no application was filed for substitution of legal heirs and as such the appeal abate as a whole and learned Trial Court committed error in holding that after the death of defendant No. 2 the appeal does not abate and right to sue survives against the applicant.

( 7. ) HEARD the learned Counsel for the parties and perused