F.A. No. 268/99
25.06.2010
None for the appellant.
Respondent no. 1 is reportedly dead.
Shri R.S. Shukla, learned P.L. for respondent no. 2.
It is noted that on listing the case earlier, vide order dated
16.12.08, no one was appeared to prosecute any of the pending
applications in this appeal. The same position is today.
The case is listed for consideration of IA no. 6672/08, an
application under Order 22 Rule 4 of the CPC and IA No. 6673/08, an
application for condoning the delay in taking steps for bringing the
legal representatives of the respondent no. 1 on record.
It is apparent from the record that no application has been filed
on behalf of the appellant for setting aside the abatement of the
appeal, which occurred on account of non taking the step for bringing
the legal representatives of respondent no. 1 on record within the
prescribed period.
The respondent no. 1 died during pendency of this appeal on
dated 18.2.06 and within the prescribed period of 90 days no steps for
bringing his legal representatives on record was taken and subsequent
to such period on 16.6.08 without filing any application under Order 22
Rule 9 of the CPC for setting aside the aforesaid abatement of the
appeal the abovementioned applications are filed.
The abatement of the civil case or the appeal being an automatic
process, the same does not require any formal order of the court. In
such premises, after expiry of 90 days from the death of respondent
no. 1 this appeal was abated against such respondent and unless any
prayer for setting aside such abatement is made, this appeal can not
be proceeded further for consideration of aforesaid IA. In such
premises, such IAs could not be considered even on merits.
However, in the absence of the appellant and his counsel the
aforesaid IAs are dismissed for want of prosecution. As the respondent
no. 2 – State is impleaded as formal party in the matter and after death
of the contesting respondent no. 1 on non bringing his legal
representatives on record within the prescribed period, this appeal has
become abated, hence the appeal is hereby dismissed as abated. There
shall be no order as to the cost. However, the appellant is extended a
liberty to file appropriate proceeding for setting aside the abatement of
the appeal in accordance with the prescribed procedure.
( U.C. Maheshwari )
Judge
bks