JUDGMENT 1. - Prabhu Dayal and Peera Mal were two brothers and when Peera Mal sold his share to Smt. Kanta Devi a dispute between the parties arose. Prabhu Dayal filed a suit for presumption. The trial court dismissed his suit on 28th October, 1980. Against this, Prabhu Dayal preferred the appeal in which the present order is being passed. 2. During the pendency of this appeal, Both Peeramal and Prabhudayal died. Peera Mal respondent died on 17th June, 1991 while the appellant Prabhu Dayal died on 16th October, 1991. An application for substitution of the legal representatives of the appellant Prabhu Dayal was moved on 13th January, 1992 and the same was accepted as it was within the 90 days of the death of the appellant Prabhu Dayal. 3. Thereafter the respondent Kanta Devi moved an application on 4th May, 1992 stating that the respondent Peera Mal died on 17th June, 1991, but no application had been made for bringing the.legal representatives of Peera Mal on record. It was prayed that the appeal which has ',.abated, automatically should be dismissed. The legal representatives of appellant Prabhu Dayal filed a reply to this application stating that during his life time, Prabhu Dayal himself was looking after the trial of the case and that the legal representatives were not aware of the proceedings or the stage of the litigation. Rajendra Kumar, son of Prabhu.Dayal came to know of this appeal only when he was informed by his counsel, about the pendency of the appeal etc. Upon this, Rajendra Kumar informed the counsel about the death of Prabhu Dayal and also supplied the particulars of his legal representatives. For some time, the appellant Rajendra Kumar could not contact his counsel as he was on touring duties and had been out of station for Surat and on his return, on 15th August, 1992 he met his counsel and came to know that Peera Mal was also a party and then he took immediate steps for filing the application for bringing the legal representatives of Peera Mal on record. In the alternative, it is submitted that the appeal was filed against Peera Mal and his daughter-in-law Kanta Devi and when Peera Mal sold his property in favour of Kanta Devi the appeal can proceed against Kanta Devi and it cannot be said to have abated. In the alternative, it is submitted that the appeal was filed against Peera Mal and his daughter-in-law Kanta Devi and when Peera Mal sold his property in favour of Kanta Devi the appeal can proceed against Kanta Devi and it cannot be said to have abated. On 17th August, 1992, appellant Rajendra Kumar (L.R.) filed an application for bringing the legal representatives of Peera Mal on record. The said application was filed giving the names of the legal representatives and in yet another application a prayer was made that the application should be allowed and the abatement of the appeal be set aside. Reasons have been given as to why the application could not be made in time. 4. The learned counsel for the appellant has contended that there were two defendants in the suit who were respondents in the appeal and one of them namely Smt. Kanta Devi is also a party on record and as such the appeal cannot abated as a whole but it could continue against her. It is also contended that when the reasons have been given for not bringing the legal representatives of deceased Peera Mal on record in time, then those reasons should be accepted and the delay should be condoned and the legal representatives should be brought on record. Reliance has been placed on Bhagwan Swaroop and others v. Mool Chand and others ( AIR 1983 SC 355 ). In this case, the preliminary decree was passed after partition, and during appeal respondent No. 1 died and his legal representatives were brought on record after more than three years. After this, the appellant filed an application under 0.22 R.4 C.P.C. and other application was filed by the legal representatives under 0.1 R.10 C.P.C. These applications were rejected by the-High Court and it was held that the appeal abated as a whole. In the Special leave before the Supreme Court this decision was reversed and it was held as under: "that the order of High Court disclosed a hypertechnical approach which if carried in and may result in miscarriage of Justice. If the trend is to encourage fair play in action in administrative law, it must all the more inhere in judicial approach. If the trend is to encourage fair play in action in administrative law, it must all the more inhere in judicial approach. Such applications have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Undoubtedly, justice according to law; law to be administered to advance justice." In Gafoor Ahmed Khan v. Bashir Ahmed Khan, ( AIR 1983 SC 123 ) the transfer of the property of sole respondent in favour of his wife by way of gift during his life time was challenged. It was held that it is a case of devolution of interest and there will be no question of abatement on the death of sole respondent. In Bapurao v. Smt. Jamuna Devi ( AIR 1983 SC 186 ) the delayed application for substitution of legal representatives and for setting aside abatement was not accepted by the High Court but the Supreme Court allowed the same observing that: ''We are unable to appreciate that litigants are presumed to read news papers so as to be aware of the death of prominent citizens from the obituary columns of leading national newspapers. And this was the only ground for declining to grant relief. It does not carry conviction. We are satisfied that the appellant had shown sufficient cause which prevented him from moving the application for substitution in time in the High Court and we accept the same as sufficient to condone delay. We accordingly condone the delay. We grant substitution. Consequently the abatement, if any, will have to be set aside." In Gangadhar and another v. Shri Raj Kumar ( AIR 1983 SC 1202 ) the order of abatement of the High Court was set aside and substitution of Legal Representatives was allowed after condoning the delay. It was also held that Court cannot refuse to set aside the abatement without considering the new rule 10A C.P.C. 5. On behalf of the respondent No. 1, it has been contended that the appellant and respondent No. 2 were both real brothers living in the same house and no one could take a plea that he had no knowledge about the death of the respondent. On behalf of the respondent No. 1, it has been contended that the appellant and respondent No. 2 were both real brothers living in the same house and no one could take a plea that he had no knowledge about the death of the respondent. It is contended that Rajendra Kumar, appellant used to come to attend the case before the trial court as well as the High Court and he had knowledge about the death of respondent No. 2 and cannot take a plea that he was not knowing' about the proceedings . Reliance has been placed on Dhani Ram and another v. Mohammed Usman and others (AIR 1974 Delhi 89). In this case, the legal heirs of the defendant appellant, were not substituted on record and the appeal was dismissed as abated. Whatever applications submitted was beyond the limitation and were vague, reasons that they have no knowledge about the pendency of the appeal, were not considered to be sufficient for condoning the delay. 6. The scheme of O. 22 C.P.C. is that a suit shall not abate on the death of plaintiff or the appellant if the rights to. sue survives. Only personal action dies with the person and it is not applicable in matters relating to money or property. A suit can proceed against the remaining defendant if there are more than one defendant and one of them dies. Similarly if there are more than one plaintiff then surviving plaintiffs have a right to proceed against the surviving defendant. In the present case, it cannot be disputed that the right to sue survives and the heirs of the deceased defendant-respondent could be brought on record. The respondent Kanta Devi was already a party to the suit and was one of the main parties, against whom relief has been prayed for and if the legal representatives of deceased respondents are not brought on record then the suit can proceed against the surviving defendant' alone. There are also provisions under R. 10A of 0. 22 C.P.C. that whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the court about it, and the court shall thereupon give notice of such death to the other party, and for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist. 7. 7. The provisions of law make it clear that the courts should not be over technical in deciding the procedural matters and the Supreme Court in a number of cases made it clear that the cause shown for the delay in moving application for substitution of the legal representatives can be accepted as sufficient if the grounds set out are able to explain the delay in moving the application. In this case, the appellant also died after the death of the respondent No. 2 and the matter had to be looked after by Rajendra Kumar, son of the appellant. According to him, he was not knowing the legal procedure and it was only after consultation with his lawyer and after making efforts to find out the details of the legal representatives that he moved an application for substitution. One of the respondent was already on record and the suit could proceed against her and in such circumstances, the appeal could not have abated as a whole. Before passing any order of abatement against respondent No. 2, an application for substitution was moved and reasons for the delay were also given. In such circumstances, the application for substitution can be allowed and it can be declared that there has been no abatement of the appeal. 8. The application for substitution of legal representatives of deceased Peera Mal is allowed and the application of respondent No. 2 Kanta Devi for dismissing the suit as abated is dismissed. Amended cause-title has already been filed, it should be placed at proper place. Mr. Mathur, undertakes to file power on, behalf of the legal representatives. The matter may now be listed for hearing in due-courses.Application For Substitution Allowed. *******