1990 Supreme(MP) 669

IN THE HIGH COURT OF MADHYA PRADESH
R.C. LAHOTI, J.
Ramdas - Appellant
Vs.
Karanju - Respondents
S.A. No. 189 of 1974 (G)
Decided On : 02-07-1990

Headnote:(1) Limitation Act, 1963 – S. 5 – delay not explained satisfactorily – cannot be condoned.

       (2) Civil Procedure Code, 1908 – O. 22, R. 3, 9 and 11 – L. Rs. of one of the joint decree holders not brought on record within time – appeal abates in its entirety.

        Short Note

       1. Counsels are heard on I.A. Nos. No. 9 and 10 of 1988, which are application under order 22, rule 9 C.P.C. read with section 5 of the Limitation Act proposing to bring the L.Rs. of deceased Banshi (appellant No. 3) on record and also seeking condonation of delay in moving the application. Banshi expired on 20 – 1 – 87. The applications have been filed on 10 – 2 – 88. The only reason assigned in the applications is that the legal representative received counsel's letter whereupon he came to Gwalior on 10 – 2 – 88 and then moved the applications.

       2. The plaintiff – respondents filed a suit for declaration of title and possession over the house property. The plaint alleges all the defendants including Banshi to be the joint trespassers. The suit has been decreed by the trial Court. The decree is joint against all the defendants. It has been confirmed in appeal.

       3. The application under section 5 of the Limitation Act and order 22, rule 9 C.P.C. cannot be allowed because not a word has been said in the application that how did the appellant's counsel come to know of the death; how and why did he write a letter to the appellants; when the letter was written; and when was it received by the appellant's legal representative. Thus, the application is too vague to deserve any indulgence by the Court. The letter said to have been written by the counsel has not been produced. The application does not deserve any consideration even prima facie. It cannot be allowed. It is accordingly rejected. With it stands rejected the application under order 22, rule 3 C.P.C.

       4. The decree for possession being joint and the appeal having abated as regards one of the defendants – appellants it will abate in its entirety. [See : Ram Sarup v. Munshi (AIR 1963 S.C. 553); Babu Sukhram Singh v. Ram Dular Singh and others (AIR 1973 S.C. 104) and Harihar Prasad Singh and others v. Balmiki Prasad Singh and others (AIR 1975 S.C. 733)]. Appeal dismissed as abated.