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2007 DIGILAW 358 (PAT)

State Bank Of India v. Mahendra Kumar Jain

2007-02-15

SYED MD.MAHFOOZ ALAM

body2007
Judgment Mahfooz Alam, J. 1. This Miscellaneous Appeal has been preferred against the order dated 17.12.96 passed by Sri Satyendra Prasad Singh, Sub-Judge III, Katihar, in Money Suit No. 47 of 1984 whereby he has been pleased to reject the prayer of the plaintiff State Bank of India to substitute the legal heirs of deceased defendant Gopi Chand Bhatera after setting aside abatement and condoning the limitation in filing the substitution petition. 2. It has been submitted by the learned Advocate of the appellant that merely on technical ground the court should not have rejected the substitution petition when a petition under Sec. 5 of the Limitation Act was already on record. He further submitted that the order of the learned Sub-Judge with regard to the abatement of the entire suit is wrong and illegal as the cause of action against remaining defendant was alive. 3. From the perusal of the impugned order, it appears that the order of abatement of the suit was passed on technical ground as the plaintiff failed to file substitution petition within time. I am of the view that merely on technical ground the court should not refuse to set aside the abatement if the application for setting aside abatement is accompanied by a petition for condonation of delay as provided under Sec. 5 of the Limitation Act. 4. From the perusal of the impugned order it further transpires that an application for condonation of delay as required under Sec. 5 of the Limitation Act had already been filed by the appellant but in spite of that the learned court below did not condone the delay and only on technical ground refused to condone the delay and passed the order of abatement of entire suit which does not appear proper in the eye of law. 5. Under the circumstances, mentioned above, I am of the view tha.t the impugned order requires interference. Accordingly, this Miscellaneous Appeal is hereby allowed and the impugned order dated 17.12.96 passed by the learned Subordinate Judge III, Katihar, in Money Suit No. 47/84 of abatement of suit is hereby set aside and the substitution petition for substituting the name of the legal heirs of Gopi Chand Bhatera is allowed after condoning the delay. 6. In the result, this Miscellaneous Appeal is allowed.