First Appeal No. 96 of 2001. Case: Ram Bharos Chhapariya Vs Smt. Neeta Devi. Chhattisgarh High Court

Case NumberFirst Appeal No. 96 of 2001
CounselFor Appellant: Mr. H. B. Agrawal, Senior Advocate with Shri Ankush Mishra, Advocate and For Respondents: Mr. P. R. Patankar, Advocate
JudgesNawal Kishore Agarwal, J.
IssueCode of Civil Procedure, 1908 - Rules 10A, 11, 22, 3, 4, 8, 9, 9(2); Code of Criminal Procedure, 1973 - Section 96; Limitation Act, 1963 (36 of 1963) - Section 5
Citation2012 (2) CGLRW 516, 2012 (4) CGLJ 108
Judgement DateJune 25, 2012
CourtChhattisgarh High Court

Order:

N. K. Agarwal, J.

  1. This order shall govern the disposal of I.A. No. 01, an application under Order 22 Rule 9(2), 3 read with Rules 3 and 11 of the Code of Civil Procedure (for short 'the Code') for setting aside the abatement of appeal and for substitution of names of the applicants as appellants in place of deceased appellant-Ram Bharos and I.A. No. 02, an application under Section 5 of the Limitation Act for condonation of delay in filing the application (I.A. No. 01) for setting aside the abatement. The plaintiff-respondent filed a suit for specific performance of Contract against the original appellant/defendant-Ram Bharos.

  2. The 6th Additional District Judge, Durg decreed the plaintiff's suit bearing Civil Suit No. 10-A/2000 vide judgment and decree dated 20.01.2001.

  3. Feeling aggrieved and dissatisfied with the judgment and decree impugned, the instant appeal under Section 96 of the Code has been preferred by the appellant/defendant-Ram Bharos.

  4. As the appeal was barred by 11 days and the Court fee has also not been affixed by the appellant, therefore, the appellant has also filed two applications, one M.C.P. No. M.C.P. 1042/2001 for condonation of delay in filing the appeal and the other, I.A. No. 3180/2001 for exemption from payment of Court Fees. The above two applications are still pending consideration before this Court.

  5. Meanwhile, on 01.03.2003, the sole appellant-Ram Bharos died and his legal representatives were not brought on record in time.

  6. In execution of the decree, the respondent/plaintiff filed an application for bringing the applicants on record as legal representatives of deceased appellant-Ram Bharos. The same was allowed by the Executing Court vide order dated 25.01.2006.

  7. Feeling aggrieved and dissatisfied with the above order, the applicants filed a Writ Petition, i.e. W.P. (C) No. 2488/2007 before this Court, inter alia on the ground, the same has been filed by decree-holder after a period of 90 days and the execution proceedings stand abated.

  8. This Court, vide order dated 25th September, 2008, dismissed the petition holding the provisions of order 22 Rules 3, 4 & 8 are not applicable to the proceedings in execution of a decree or order.

  9. The applicants, i.e., legal representatives of the deceased-appellant have moved an application for bringing them on record in place of deceased-appellant for setting aside the abatement and for condonation of delay in filing the application for setting aside the abatement (I.A. No. 01 and I.A. No. 02) on 11.01.2010, i.e. after a period of about 7 (seven) years. In substance, the ground taken in the application for condonation of delay is reproduced as under:

    That about a month ago the applicant Nos. 1, 2, 3, 5 and 6, who have been substituted in the execution case relating to the same case before the trial court, engaged Shri Gopal Das Vaishnav a senior advocate, of Durg in that execution case. That on 7-1-2010 Shri G.D. Vaishnav Advocate, as above, told the applicant No. 2 Santosh that from the file of the execution case it appears that an appeal against the decree of the trial court has been filed in the high Court. That thereafter the applicant No. 2 rushed to Bilaspur on 8-1-2010 contacted counsel here to verify the pendency of any appeal against the decree of the trial court and came to definite knowledge about the pendency of the instant appeal on 8-1-2010.

  10. Shri H.B. Agrawal, learned Senior Advocate would submit: the delay has occurred in filing the application for setting aside the abatement due to mistake of the counsel, and therefore, the delay deserves to be condoned and the application for setting aside the abatement and for substitution of the applicants in place of deceased appellant-Ram Bharos may be allowed. He placed reliance upon the judgment of Supreme Court in the case of Bhagwan Swaroop and others Vs. Moolchand and others AIR 1983 SC 355, in which the Supreme Court has held: the laws of procedure are devised for advancing justice and not impending the same.

  11. Per contra, the submission of Shri P.R. Patankar, learned counsel for the respondent, is that the appeal already abated and no cause much less sufficient cause, has been shown for setting aside the abatement and after condoning the delay in filing the application for setting aside the abatement the right accrues in favour of the respondent in appeal and it will be unfair and unjust to take away her vested right on such flimsy and baseless ground for which no foundation has been led in the application. It is further contended by Shri Patankar that the fact of pendency of appeal was just within the knowledge of the applicants since its inception, even they did not file a substitution...

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