ORDER

1. Heard on I.A.Nos.5005/2024, 5006/2024 & 5007/2024.

2. Aforesaid three applications have been filed in respect of substitution of legal representatives of respondent 1 – Avinash Sahay Johri.

3. I.A.No.5005/2024 has been filed under Order XXII Rule 4 CPC with the prayer for substitution of legal representatives on record; I.A.No.5006/2024 is for setting aside abatement; and I.A. No. 5007/2024 has been filed under section 5 of the Limitation Act, for condonation of delay in filing of the application for setting aside abatement.

4. A joint reply to the applications under Order XXII rule 4 and 9 CPC has been filed supported by affidavit, opposing the prayer for setting aside abatement and for substitution of legal representatives. For the reasons best known to legal representatives of respondent 1 – Avinash Sahay Johri, no reply to the application (I.A.No.5007/2024) under section 5 of the Limitation Act, has been filed.

5. It is contended by learned counsel for the appellants that respondent 1 – Avinash Sahay Johri had died on 3.2.2018 and an application under Order XXII rule 4(3) CPC informing his death was filed on 28.9.2021 by his pleader with the prayer for dismissal of appeal as having abated but, as previously engaged counsel for the appellants was elevated as a Judge of this Court, therefore, no step could be taken for making contact to the appellants and for filing application for substitution of legal representatives of respondent 1. He submits that even otherwise, after admission of second appeal on 6.12.2017, it was not listed upto 26.4.2023 and as the previous counsel was elevated as a Judge of this Court, therefore, the appellants were also not informed about progress of the appeal and ultimately when the appellants made contact to newly engaged counsel Shri Saket Malik, then on 6.12.2023 he sought 10 days time to move appropriate application for substitution of legal representatives of respondent 1, which was granted to him and thereafter within a period of 90 days, the aforesaid applications were filed on 6.3.2024. Learned counsel submits that as legal representatives of respondent 1 have not filed any reply/counter affidavit to oppose the application under section 5 of the Limitation Act, therefore, the same deserves to be allowed, and delay in filing of the application under Order XXII rule 9 CPC deserves to be condoned and resultantly after setting aside abatement, the appellants deserve to be permitted to substitute the legal representatives of respondent 1. Accordingly, he prays for allowing of the said applications.

6. Learned counsel appearing for legal representatives of respondent 1- Avinash Sahay Johri, with the support of reply submits that although previously engaged counsel for the appellants was elevated as a Judge of this High Court, but along with him Shri K.S. Jha, Advocate was also a counsel appointed by the appellants and he could move the requisite applications and as such, explanation of delay given in the application on the premise of elevation of previous counsel as a Judge of this Court, is not acceptable. He further submits that after filing of the application under Order XXII rule 4(3)of CPC on 28.9.2021, time to file application for substitution started and upon expiry of 90 days, the appeal had abated. He submits that there being no sufficient explanation of delay, the applications deserve to be dismissed.

7. Heard learned counsel for the parties and perused the record.

8. Undisputedly the respondent 1-Avinash Sahay Johri, had died on 3.2.2018 and after his death, an application under Order XXII Rule 4(3) CPC (not under Order XXII rule 10-A CPC) was filed on 28.9.2021 by the pleader of deceased respondent 1 with the prayer to dismiss the second appeal as having abated.

9. Record of second appeal shows that, it was admitted on 6.12.2017 and thereafter it was listed first time on 26.4.2023, then on 14.8.2023 and on these two dates, the application under Order XXII Rule 4(3) CPC was not tak