Order Dr. J.N. Dubey J. This appeal is directed against the order dated 18.4.1995 of the 1st Additional District Judge, Deoghar rejecting the application of the appellants, for setting aside the abatement under Order XXII, Rule 9, CPC. 2. It appears that the respondents No. 1 and one Uttam Kumar Tikmani filed Title Suit No. 50/85 in the Court of Sub-Judge, Deoghar which was transferred for disposal to the 1st Additional District Judge Deogbar which was decreed. The appellants filed Title Appeal No. 10/13 of 1990/1992 before the District Judge, Deoghar, on 30.6.1992 the applicants moved a substitution application stating that Uttam Kumar Tikmani had died about one month ago leaving behind his widow and minor children as his heirs but they did not know their names, and, as such the respondents be directed to supply the same. On 30.11.1993 the respondents moved an application stating that Uttam Kumar Tikmani died on 1•6•1992 but his heirs were not brought on record within the prescribed period of limitation and as such the appeal stood abated. The appellants filed counter-affidavit stating that the respondents have not given the names of the heirs of Uttam Kumar Tikmani although according to their information he died issueless. It was prayed that the respondents be directed to furnish details of the heirs of Uttam Kumar Tikmani. On 15.4.1995 the appellants moved another substitution application giving the names of all the heirs of the deceased along with an application for condo-nation of delay. The 1st Additional District Judge, Deoghar, refused to set aside the abatement of the appeal on 18.4.1995. Feeling aggrieved the appellants have filed this appeal. 3. Heard the learned Counsel for the parties and perused the record. 4. Learned Counsel for the appellants conteded that in view of the fact that the appellants Lad filed the first substitution application well within time the question of abatement of the appeal did not arise. He further conteded that even assuming that their application dated 30.6.1992 could not be treated as substitution application for want of details of the heirs of Uttam Kumar Tikmani, the delay in filing the subsequent substitution application ought to have been condoned. 5. I find substance in the argument of the learned Counsel for the appellants. On the own case of the respondents, Uttam Kumar Tikmani died on 1-6-1992 and, therefore, the application dated 30.6.1992 of the appellants was well within time. 5. I find substance in the argument of the learned Counsel for the appellants. On the own case of the respondents, Uttam Kumar Tikmani died on 1-6-1992 and, therefore, the application dated 30.6.1992 of the appellants was well within time. In their application the appellants had stated that Uttam Kumar Tikmani had died about one month ago leaving behind his widow and minor children as his heirs but they did not know their names and, as such, the respondents be directed to supply the same. However, the respondents, instead of supply the names of heirs of Uttam Kumar Tikmani moved an application on 30-11-1993 claiming that the appeal stood abased for the failure of the applicants to bring on record his heirs within time. The respondents did not disclose the names of the heirs of Uttam Kumar Tikmani in their application and as such, in their counter affidavit the appellants again prayed that they may be directed to supply the same. Thus, right from the time of their coming to know of the death of Uttam Kumar Tikmani the appellants had tried their best to ascertain the names of his heirs but did not succeed due to non-co-operation of the respondents bad inaction on the part of the Court below. In my opinion the application dated 30-6-1992 of the appellants ought to have been treated as a substitution application and the respondents should nave been directed to furnish the names of heirs of Uttam Kumar Tikmani. 6. The Counsel for the respondents was under a legal obligation to intimae the Court below about the death of Uttam Kumar Tikmani immediately on his coming to know of it. However, instead of doing so, he moved an application on 30.11.1993 for abating the appeal for the failure of the appellants to bring on record his heirs within time. The names of heirs of Uttam Kumar Tikmani were not disclosed by him even in this application and, as such, the appellants had no option but to again request the Court to direct the respondents to do so. In this view of the matter, even assuming that the application dated 30-6-1992 of the appellants could not be treated as a substitution application the delay in filing the subsequent substitution application ought to have been condoned. In this view of the matter, even assuming that the application dated 30-6-1992 of the appellants could not be treated as a substitution application the delay in filing the subsequent substitution application ought to have been condoned. My this view finds support from a decision of the Supreme Court in Gangadhar and another v. Raj Kumar (1984) 1 SCC 121 , which reads thus : "The High Court proceeded to examine the truth of their averment and held that at least one of the appellants must have come to know that the sole respondent had died on April 19 1980. The High Court then referred to Union of India v. Ram Charan and held that it is for the appellant to show when he came to know about the death of the deceased respondent, and assign reasons why they did not come to know about it earlier and satisfy the Court that they had no means of knowledge and only then the appellants can get benefit of the provision of clause 5 of the Limitation Act. In approaching the matter from that angle the learned Judge failed to take not of an important change in law deliberately made to cater to situation which was in the hand of the learned Judge Nowhere in the order the learned Judge refers to Rule 10-A of Order XXII No attempt was made to appreciate what necessitated the introduction of this new provision. Applying the well known test when a new provision is introduced in a statute prescribing procedure as to what was the mischief to remedy which the new provision was introduced in law, Rule 10 A was specifically introduced to meet with the situation in hand. “The legislative intention of casting a burden on the learned advocate of it party to give intimation of the death of the party represented by him and for this limited purpose to introduce a deeming fiction of the contract being kept subsisting between the learned advocate and the deceased party was that the other party may not be taken unawares at the time of hearing of the appeal by springing surprise on it that the respondent is dead and appeal has abated. In order to avoid procedural justice sooring a march over substantial justice Rule 10-A was introduced by the Code of Civil Procedure (Amendment) Act of 1976 which came into force on February 1, 1977 Unfortunately, the learned Judge took no notice of the wholesome provision and fell back on the earlier legal position which automatically stands modified by the new provision and reached an unsustainable conclusion. In fact in situation as the present one, we may preferably refer to Bhagwan Swaroop v. Mool Chand. The view taken in that case would unquestionably show that the High Court was in error in refusing to set aside abatement. We are of the opinion that the earliest knowledge about the death of the deceased respondent can be attributed to the appellants on July 1, 1981 when Raj Kumar applied for substitution. Promptly within two weeks the application for substitution was made by the appellants. Therefore, it is satisfactorily established that the appellants were prevented by a substitution cause in making the application for substitution within the prescribed period limitation and the delay deserves to be condoned." 7. Similarly in O.P. Kathplia v. Lakhmir Singh and others, AIR 1984 SC 1744 , the Supreme Court again observed ; "Coupled with this is the fact that under Rule 10-A of O. XXII a duty is cast on the pleader appearing for the deceased party to give intimation of the same to the opposite party. This duty in this case was discharged on March 2, 1984 that is six years after the death and promptly within three weeks the petition for substitution is filed. Having regard to the cumulative effect of all these facts we are satisfied that the appellant has made out a sufficient cause for condoning the delay in seeking substitution. We accordingly set aside abatement of appeal and grant substitution." 8. It is now well settled that a liberal approach should be adopted in the matter of condo-nation of delay. In Collector Land Acquisition, Anantnag and ors v. Most, Katiji and ors, the Supreme Court held as under: "The Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act or 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits’. In Collector Land Acquisition, Anantnag and ors v. Most, Katiji and ors, the Supreme Court held as under: "The Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act or 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression sufficient cause employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court bas been making a justifiably liberal approach in matters instituted in this court. But the message does not appeal to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing 10 condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause could be decided on merits after hearing the parties. 3. "Every day’s delay must be explained does not mean that a pendantic approach should be made, why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on &count of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 9. In this view of the matter, the order of the Court below cannot be legally sustained. 10. In the result the appeal succeeds and is allowed. In this view of the matter, the order of the Court below cannot be legally sustained. 10. In the result the appeal succeeds and is allowed. The order of the Court be low is set aside and it is directed to decide the appeal on merit after substituting the heirs of deceased Uttam Kumar Tikmani. No order as to costs. Appeal allowed.