This appeal arises out of a suit for specific performance which was dismissed by the court of first instance but was decreed by the lower appellate court. The lower appellate court had directed the defendant no.1 to the suit to execute the sale deed pursuant to the agreement to sell dated 17.7.76 after receiving the balance sale consideration and the defendant no.2 to the suit, who was a subsequent purchaser was directed to join the defendant no.1 in the execution of the sale deed.
This appeal has been preferred only by defendant no.2 Ram Dulary and defendant no.1 Jagdambika Prasad has been arrayed as respondent no.2. During the pendency of this appeal Jagdambika Prasad respondent no.2 died in November 1993 but no application to bring on record his heirs and legal representatives was moved by the appellant. Later appellant Ram Dulary also died on 5.11.01 and no application for substituting his heirs and legal representatives was also moved within time. On the application of the plaintiff-respondent no.1 to dismiss the appeal as having abated on account of death of both the appellant Ram Dulary and the respondent no.2 Jagdambika Prasad, this court vide order dated 22.4.02 dismiss the appeal as abated even though no such order was required as abatement is automatic.
At this stage, the heirs of the appellant moved application for substitution but the same was rejected on a technical ground by order dated 19.8.02.
Now heirs of the appellant Ram Dulary have applied again for substitution after setting aside abatement and condoning the delay in moving the substitution application and for the recall of the order dated 22.4.02. No application for substitution in respect of respondent no.2 Jagdambika Prasad till date has been filed. Simultaneously, an application seeking amendment in the aforesaid substitution application has been filed so as to seek impleadment/substitution of the heirs and legal representatives of the respondent no.2 also in the said application.
I have heard Sri Sandeep Shukla, learned counsel for the proposed heirs and legal representatives of the deceased appellant and Sri Madhur Prakash, learned counsel for the plaintiff-respondent no.1 on the above two applications i.e. the application for substitution in respect of appellant and the amendment application.
Undisputedly, respondent no.2 Jagdambika Prasad had died in the year 1993 and till date there is no application seeking substitution of his heirs and legal representatives.
As far as substitution in respect of appellant Ram Dulary is concerned no substitution was moved within time. The application for substitution filed after the abatement of the appeal stood rejected on 19.8.02.
Now only substitution of the heirs and legal representatives of the appellant is being sought after setting aside the abatement. The decree in dispute is joint against the appellant and the respondent no.2 and it cannot be bifurcated or severed inasmuch as both of them had been directed to join execution of the sale deed. In such an event, as the abatement in respect of respondent no.2 would continue, there is no purpose for setting aside abatement in respect of the appellant. The appeal as a whole would continue to remain abated.
Moreover, a perusal of the second application filed for the substitution of the heirs and legal representatives of the appellant does not even disclose sufficient reasons for the delay in moving the same and for setting aside abatement. The only thing said is that the heirs and legal representatives had no knowledge of the procedure for filing substitution application and it was only on receiving information that an order of abatement has been passed on 22.4.02 that they have taken steps for filing the substitution application. It is not the case of the applicants that they had no knowledge of the pendency of the appeal and that they were unable to contact the counsel of the appellant for the purposes of moving the substitution application.
In such circumstances, I am of the view that cause shown for setting aside abatement or for moving the substitution with delay or for the recall of the order dated 22.4.02 is not sufficient.
Accordingly, the application is rejected. In view of the rejection of the above application, the amendment sought in the aforesaid application also fails and the said application is also rejected. Even otherwise such an amendment in the aforesaid application is not legally permissible.
Order Date :- 7.10.2010 piyush