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1998 DIGILAW 694 (RAJ)

Babulal v. Jagga Bali

1998-05-20

P.C.JAIN

body1998
Honble JAIN, J.—The defendant-petitioner has filed this revision petition under Section 115 of the Code of Civil Procedure, 1908 against the order dated 26.4.1997 passed by the learned Additional District Judge No. 1, Sri Ganganagar whereby the order dated 4.8.1993 dismissing the appeal as abated was set aside and quashed and the legal representatives of deceased Babulal were ordered to be taken on record. (2). I have heard the learned counsel appearing for the parties and have very carefully gone through the record of the case. (3). The brief facts of the case are that non-petitioner Jagga Bali filed an appeal against the judgment and decree passed by the learned trial court dated 12.11.1991 in civil suit No. 47 of 1988, which was registered as Civil Appeal No. 3 of 1992. During the pendency of the appeal, petitioner Babulal expired on 22.1.1993 and on failure to implead the legal representatives of deceased-petitioner Babulal on record within the statutory period of 90 days, the appeal stood automatically abated. For such an abatement, no formal order of the court is necessary. However, the court passed the order of abatement of the appeal on 4.8.1993 and by the same order rejected the application of the appellant, who is non-petitioner in this case, under O. XXII, R. 4 CPC as the same was held to have been filed beyond the period of limitation prescribed by the law. (4). In the petition, the petitioner has averred that the application dated 12.7.93 though alleged to have been filed under O. XXII, R. 4 CPC was in fact filed under O. XXII, r. 9 CPC. The order dated 4.8.1993 attained finality as against the order of abatement, no appeal as provided under O. XLIII, r. 1 [k] CPC was filed. Instead of that, the appellant, who is non- petitioner in this case, filed an application dated 7.8.1993 purporting to be an application under O. XXII, Rr. 5 and 9 read with S. 151 CPC praying therein that the order of abatement of appeal passed on 4.8.1993 may be set aside and quashed. (5). Instead of that, the appellant, who is non- petitioner in this case, filed an application dated 7.8.1993 purporting to be an application under O. XXII, Rr. 5 and 9 read with S. 151 CPC praying therein that the order of abatement of appeal passed on 4.8.1993 may be set aside and quashed. (5). The plea taken by the appellant, who is non-petitioner in this case, was that he came to know about the death of Babulal for the first time on 1.6.1993 and thus, the application moved by him on 12.7.1993 was very much within limitation and that the order dated 4.8.1993 was passed in ignorance of the provisions of O. 22, R. 10-A CPC. (6). The petitioner vehemently opposed that application on the ground that once the application filed by the appellant, who is non-petitioner in this case under O. XXII, R. 4 CPC, which was in fact under O. XXII, R. 9 CPC was dismissed and that order has attained finality, the court becomes functus officio to entertain another application and review that order. However, that argument did not appeal to the learned Addl. District Judge No. 1, Jodhpur and by the impugned order, he allowed the application filed by the appellant who is non-petitioner in this case. (7). A perusal of the sequence of events shows that the application filed by appellant, who is non-petitioner in this case was in fact under O. XXII, R. 9 CPC. A confusion was created because the exact provisions under which the above application was filed were not mentioned on that application. Faced with this difficulty, the learned Additional District Judge asked the learned counsel for the appellant to explain the provisions under which the above application was filed. It was stated at the bar that the said application was filed under O. XXII, r. 4 CPC. However, I find substance in the contention of the learned counsel for the petitioner that the said application was in fact filed under O. XXII, r. 9 CPC because the appellant, made a specific prayer for taking the legal representatives on record by stating that he came to know about the death of Babulal on 1.6.1993. A perusal of the order dated 4.8.1993 shows that the learned Addl. A perusal of the order dated 4.8.1993 shows that the learned Addl. District Judge considered the above application on merits and gave a categorical finding as to when the appellant came to know about the factum of death of Babulal and held that the appellant was aware of the death of Babulal when the son of Babulal filed death certificate in the learned lower court on 15.2.1993. Though there was strike of Advocates on 15.2.1993 but the appellant must be deemed to have gained knowledge about the death of Babulal. The learned Addl. District Judge, therefore, held that the above application was barred by time and thus, the same was dismissed vide order dated 4.8.1993. (8). It is relevant to mention here that the order dated 4.8.1993 was not challenged by the appellant in any court and thus, it has attained finality. It may also be mentioned here that no review petition was filed against that order. In these circumstances, the appellant, who is non-petitioner in this case was not entitled to move another application under O. XXII, r. 9 CPC and to get another finding from the same court. In this view of the matter, the learned Addl. District Judge, therefore, committed a jurisdictional error in passing the impugned order by which the application filed by the appellant, was allowed. (9). For the above reasons, I accept this revision petition and set aside the order dated 26.4.1997 passed by the learned Additional District Judge No. 1, Sri Ganganagar. (10). There will be no order as to costs.