ORDER
R. Banumathi, J.
1. These Civil Revision Petitions are directed against the order of dismissal of Application filed under Section 5 of the Limitation Act, Application filed to set aside the abatement due to death of the First Defendant and the Application to bring on Legal Representatives of the Deceased First Defendant as parties to the Application.
2.1. Relevant facts necessitated for disposal of these Revision Petitions are as follows:- Defendants are alleged to have entered into a Sale Agreement with the Plaintiff agreeing to sell the suit properties. Plaintiff has obtained an exparte decree for specific performance in O.S. No. 117 of 1997 on 24.12.1998. For Execution of the Decree, E.P. No. 21 of 1999 was filed before Sub-Court, Sankari, which was later transferred to Sub-Court, Namakkal and renumbered as E.P. No. 259 of 2002.
2.2. After receipt of Notice in the Execution Petition, Defendants filed I.A. No. 1441 of 2002 under Section 5 of the Limitation Act (for short “the Act”) seeking condonation of delay of 657 days in filing the Petition to set aside the exparte decree. The Plaintiff has filed his Counter in I.A. No. 1441 of 2002. When that Application was pending, the First Defendant died. Steps were not taken within the stipulated time for bringing on record the legal representatives of the deceased First Defendant. Second Defendant filed Petition in I.A. No. 1648 of 2005 to condone delay of 665 days in filing the Petition to set aside abatement. He has also filed I.A. Nos. 1649 and 1650 of 2005 to set aside the abatement and to bring on record the legal representatives of the Deceased – First Defendant. Finding that reason for delay in taking steps to implead Legal Representatives of the First Defendant has not been satisfactorily explained, the Court below dismissed all three Applications (I.A. Nos. 1648 to 1650 of 2005), which are impugned in C.R.P. Nos. 195 to 197 of 2007. For non taking of steps in I.A. No. 1441 of 2002 filed under Section 5 of the Act, lower Court dismissed that Application, which is challenged in C.R.P. No. 194 of 2007.
3. Learned Counsel for the Petitioners has submitted that though Legal Representatives of the First Defendant was not impleaded, the Second Defendant, who was one of the Petitioner, was on record and Court below erred in dismissing I.A. No. 1441 of 2002. Submitting that for death of one of the Petitioner, there could be no abatement, learned Counsel for the Petitioner has placed reliance upon the decisions reported in 1995 (1) M.L.J. 180; 2007 (1) M.L.J. 863. It was further submitted that the Court cannot defeat the rights of the parties and the collateral proceedings are to be ordered so as to advance substantial justice.
4. Drawing attention of the Court to dates and events, learned Counsel for the Respondent / Plaintiff has submitted that no acceptable reasons were stated for the inordinate delay. It was further submitted that the Petitioner being party to suit proceedings had been negligent in taking steps for impleading Legal Representatives of deceased First Defendant and the Court below has rightly dismissed all the Applications.
5. In a Suit for specific performance, exparte decree has been passed on 24.12.1998. Defendants have taken steps for setting aside the exparte decree by filing the Petition under Section 5 of the Limitation Act. To condone the delay of 657 days in filing the Petition under O.9 R.13 C.P.C, when the Defendants have taken steps to set aside exparte decree and when the Petitioner / Second Defendant is on record, the Court ought not to have dismissed I.A. No. 1441 of 2005 filed under Section 5 of the Act. It is to be noted that the Second Defendant married Plaintiff’s Daughter. In the supporting Affidavit, the Second Defendant has averred that because of frequent quarrel with his wife, he had mental agony and suffering from illness and could not take prompt steps in the proceedings. When the Second Defendant has sworn an Affidavit explaining the reasons for the delay, to advance substantial justice, the Court below ought to have considered the same.
6. In the collateral proceedings, approach of the Court must be to advance substantial justice and not to defeat the rights of the parties. In the decision reported in Subramaniam v. Perumayee and Anr. 1995 T.L.N.J 113, there was delay in filing the Petition to bring on record Legal Representatives. The explanation was that the Petitioners bonafide believed that one of the Respondents was on record and there was no question of abatement. Condoning the delay, a Division Bench of this Court has observed that proceedings for bringing on record the legal representatives being collateral proceedings, approach of Court must be to ensure that substantial rights of parties are not defeated by reason of decision in collateral proceedings. The said observation is applicable to the case in hand. Learned Counsel for the Petitioner has contended that even if any of the parties dies and his Legal Representatives are not brought on record, the Suit or Appeal or other proceedings will not abate.
7. In Daya Ram and Ors. v. Shyam Sundari and Ors. the Hon’ble Supreme Court held that
…Where a Plaintiff or an Appellant after diligent and bonafide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, the impleaded legal representatives sufficiently represent the estate of the deceased and a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record….
8. In another decision the Apex Court in Newanness @ Mewajannessa v. Shaikh Mohammed and Ors. again reiterated that in an appeal where one of the defendant dies and the other defendant who was representing all heirs of the deceased widow is already on record, it was held that the appeal would not abate due to failure of substitution of heirs of the deceased.
9. Observing that non-filing of Application for impleading other legal representatives within the period of limitation, the proceedings would not abate, in the decision reported in Mahabir Prasad v. Jaga Ram the Supreme Court held as follows:
…Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate….
The consistent view is that the proceedings would not abate due to failure to bring on record legal representatives of the Deceased Petitioner.
10. Delay in taking steps seems to have substantially weighed in the mind of the lower Court in declining to condone the delay. The expression “sufficient cause” within the meaning of Section 5 of the Act and O.22 R.9 C.P.C as well as similar other provisions and the ambit of exercise of power thereunder have been subject matter of consideration before the Supreme Court on numerous occasions. In The State of West Bengal v. Administrator, Howrah University while considering the scope of expression “sufficient cause” within the meaning of Section 5 of the Limitation Act, the Supreme Court has held that the said expression should receive liberal construction so as to advance substantial justice.
11. In the decision reported in Ram Nath Sao v. Gobardhan Sao 2002 (1) C.T.C. 769, the Supreme Court has held that sufficient cause, in connection with the delay in filing the Application to set aside abatement or similar provision should receive liberal construction so as to advance substantial justice.
12. In view of the foregoing discussions, in my considered view, the lower Court was not justified in dismissing the Application filed to condone the delay in taking steps and also the Application in I.A. No. 1441 of 2002 filed under Section 5 of the Limitation Act to condone the delay in filing the Application to set aside exparte decree.
13. The Impugned Orders dated 06.12.2006 in I.A. Nos. 1648 to 1650 of 2005 are set aside and C.R.P. Nos. 195 to 197 of 2007 are allowed. I.A. No. 1441 of 2002 is ordered to be restored on file. The Petitioner shall carry out necessary amendment in I.A. No. 1441 of 2002. Thereupon, the Court below shall dispose of I.A. No. 1441 of 2002 on merits upon hearing both parties after affording sufficient opportunity to them. C.R.P. No. 194 of 2007 is ordered accordingly. The connected M.P. No. 1 of 2007 is closed.