JUDGMENT : Heard Mr. S.K. Sharma, the learned counsel for the petitioner and Mr. A.K. Choudhary, the learned counsel for the respondent. 2. This CMP petition has been filed for recalling the order dated 09.10.2014 passed by this Court and further prayer is made for restoring the SA No.346 of 1996 (P) to its original file which stood abated. 3. Mr. Sharma, the learned for the petitioner in this CMP took this court to order dated 09.10.2014 passed in SA No.346 of 1996(P). For the sake of convenience, the said order is recorded hereinbelow: “Nobody appears on behalf of the appellant. Learned counsel Shri Arvind Kumar Choudhary submits that he had filed vakalatnama on behalf of sole respondent, who died on 4.03.2007. Till date sole respondent has not been substituted and hence this appeal stands abated. Interim order passed on 08.04.97 stands vacated.” 4. By way of referring this order, Mr. Sharma, the learned counsel appearing for the petitioner submits that it is apparent that the respondent informed this Court on 09.10.2014 about the death of the respondent on 04.03.2007. By way of referring Order XXII Rule 10A of CPC he submits that it is the duty cast upon the counsel appearing for the respondents to inform about the death of the respondent but this duty has not been fulfilled by the counsel appearing for the respondent and in that view of the matter the order is fit to be recalled. He further submits that when it was came to the notice of the petitioner about the dismissal of the SA, this CMP has been field for recalling the said order and for restoration of the SA No.346 of 1996(P). CMP was filed in the year 2015 and thereafter he filed the I.A No.7062 of 2018 under section 151 read with Rule 96 of the High Court of Jharkhand Rules for impleading the legal heirs/successors of the sole respondent as party respondent. In that IA, notices were issued upon the sole respondent and pursuant thereto the legal heir/successor has appeared in the CMP and has raised objection about the maintainability of the said IA as it has been filed by one of the legal heir/successor of the sole appellant who also happens to be dead and they have not been impleaded as yet in the CMP as well as SA. Further objection has been raised on behalf of the respondent who appeared pursuant to notice that the subsequent two IAs for condoning the delay of 11 years and 123 days for filing the substitution petition is also not maintainable in view of the fact that there is no explanation of such delay and IA No.6137 of 2015 is filed for condoning the delay of 301 days in filing the CMP is also not in accordance with law as there is no explanation of delay. 5. On the above objections, Mr. Sharma, the learned counsel for the petitioner further advanced his arguments and submitted that in view of the Order 22 Rule l0A CPC, it was the duty of the respondent to inform about the death of the respondent which has not been done and in that view of the matter order dated 09.10.2014 is fit to be recalled. He further submits that as soon as it has come into the knowledge of the petitioner about the death and regarding dismissal of the SA, the said CMP has been filed. He further submits that there is sufficient cause made in both the IAs for delay in filing the CMP as well as substitution petition. To buttress his argument, Mr. Sharma, the learned counsel for the petitioner relied in the case of “Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma (Dead) by L.Rs. & Ors.” reported in 2008 AIR SCW 6025. 13. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - L.Rs. of the deceased - on account of the abatement) : (i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed; (ii) Neither the counsel for the deceased-respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant. (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim. 14. (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim. 14. If, as in this case, the appeal was admitted in 1993 and did not come up for hearing till 2005, and the respondent died in-between, the court should not punish the appellant for his ignorance of the death of respondent, by refusing to set aside the abatement. Lack of diligence or negligence can be attributed to an appellant only when he is aware of the death and fails to take steps to bring the legal representatives on record. Where the appellant being unaware of the death of respondent, does not take steps to bring the legal representatives on record, there can be no question of any want of diligence or negligence. 6. By way of relying on this judgment he submits that as the petitioner was not knowing about the death of the respondent that is why there is delay in filing the substitution petition. He submits that in this judgment Order XXII Rule 10A CPC has been considered by the Hon’ble Supreme Court and the Hon’ble Supreme Court has come to the conclusion that it is the duty of the counsel to inform about the death. He further relied in the case of “Sardar Amarjit Singh Kalra (Dead) by LRs & Others v. Pramod Gupta (Smt.) (Dead) by LRs And Others” reported in 2003 3 SCC 272 . “26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court’s power or in conformity with the avowed object of the Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not interdependent upon one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then the interests of justice would require the remaining other appellants being allowed to pursue the appeals for the benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well. 7. By way of relying on this judgment, he submits that laws of procedure are meant to regulate effective, assist and aid the object of doing substantial justice and not foreclose even an adjudication on merits. 7. By way of relying on this judgment, he submits that laws of procedure are meant to regulate effective, assist and aid the object of doing substantial justice and not foreclose even an adjudication on merits. He submits that as this SA has already been admitted on substantial question of law, merely on technicalities that prayer in CMP may not be rejected. He further relied in the case of “Pankajbhai Rameshbhai Zalavadia v. Jethabhai Kalabhai Zalavadiya (Deceased) Through LRs & Others” reported in AIR 2018 SC 490 . “14. In the matter on hand, though the trial court had rightly dismissed the application under Order 22, Rule 4 of the Code as not maintainable at an earlier point of time, in our considered opinion, it needs to be mentioned that the trial Court at that point of time itself could have treated the said application filed under Order 22, Rule 4 of the Code as one filed under Order 1, Rule 10 of the CPC, in order to do justice between the parties. Merely because of the non-mentioning of the correct provision as Order 1, Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer. It is by now well-settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the Courts are meant to do justice and not to decide the applications based on technicalities. The provision under Order 1, Rule 10, CPC speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add any one as a plaintiff or defendant if it finds that such person is a necessary or proper party. The Court under Order 1, Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice. The expression "to settle all questions involved" used in Order 1, Rule 10 (2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject-matter thereof. The expression "to settle all questions involved" used in Order 1, Rule 10 (2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject-matter thereof. The Parliament in its wisdom while framing this rule must be held to have thought that all material questions common to the parties to the suit and to the third parties should be tried once for all. The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. There cannot be any dispute that the party impleaded must have a direct interest in the subject-matter of litigation. In a suit seeking cancellation of sale deed, as mentioned supra, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party, and he has to be added. If such purchaser has expired, his legal representatives are necessary parties. In the matter on hand, since the purchaser of the suit property, i.e., defendant No.7 has expired prior to the filing of the suit, his legal representatives ought to have been arrayed as parties in the suit while presenting the plaint. As such impleadment was not made at the time of filing of the plaint in view of the fact that the plaintiff did not know about the death of the purchaser, he cannot be non-suited merely because of his ignorance of the said fact. To do justice between the parties and as the legal representatives of the purchaser of the suit property are necessary parties, they have to be impleaded under Order 1, Rule 10 of the Code, inasmuch as the application under Order 22, Rule 4 of the Code was not maintainable. As mentioned supra, it is only if a defendant dies during the pendency of the suit that the provisions of Order 22, Rule 4 of the Code can be invoked. As mentioned supra, it is only if a defendant dies during the pendency of the suit that the provisions of Order 22, Rule 4 of the Code can be invoked. Since one of the defendants i.e. defendant No.7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased defendant No.7 under Order 1, Rule 10 of the Code, for the simple reason that the plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the plaintiff had known about the death of one of the defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the plaintiff under Order 1, Rule 10 of the Code discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased defendant No.7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice. 15. Having regard to the totality of the narration made supra, there is no bar for filing the application under Order 1, Rule 10, even when the application under Order 22, Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties under Order 1, Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.” 8. By way of relying on this judgment, Mr. By way of relying on this judgment, Mr. Sharma, the learned counsel submits that the Courts are meant to do substantial justice between the parties and technical rules or procedures should not be given precedence over doing substantial justice. He further submits that in all the petitions there are substantial reasons and the prayer of the petitioner is fit to be allowed and the SA needs to be restored which has already been admitted on substantial question of law. 9. Per contra, Mr. A.K.Choudhary, the learned counsel for the respondent who appeared pursuant to notice issued in IA No.7062 of 2018 has opposed the argument of Mr. Sharma, the learned counsel for the petitioner. He took this Court to paragraph no.8 of the said CMP which is meant for restoration of the SA. He submits that in this paragraph it has been stated that the sole respondent died in the year 2007 but the appellant Smt. Gita Devi, the mother of the appellant had no legal knowledge to the effect that after the death of any party a substitution application has to be filed to bring his legal heirs on record as such she could not inform about the death of the sole respondent Arun Kumar Sah to her Advocate. By way of relying on this paragraph of the said CMP, he submits that instance taken by the petitioner now which has been advanced by way of argument before this Court is contradictory and there is no substantial disclosure and there is no bona-fide intention on behalf of the petitioner. He further submits that for delay of 11 years 123 days for condoning the delay in filing this substitution petition is also not in accordance with law. He further submits that delay of 301 days in filing the CMP is also not explained. He further submits that in the court below in Execution Case it was also disclosed in 2009 about the death of the sole respondent and inspite of that the petitioner has not taken any steps. He further submits that appellant has also died after the order dated 09.10.2014 and the appellant has also not been substituted as yet and this lacuna and laches on the part of the petitioner that too which is not fulfilling the criteria of allowing the petition under Order XXII Rule 9 is fit to be rejected. 10. To buttress his arguments, Mr. 10. To buttress his arguments, Mr. Choudhary, the learned counsel relied in the case of “Karam Kaur v. Jalandhar Improvement Trust & Others” reported in 2014 6 SCC 409 . “12. The learned counsel for the appellant took a similar plea as was taken before the High Court that the appellant had no idea about dismissal of the appeal for non-prosecution. The appellant has also taken plea that she is an illiterate lady and was informed by her husband that his appeal was not likely to be taken up for the next 20 years and their counsel would intimate the date whenever it is listed. She was not aware that the LRs were required to be brought on record after the death of her husband. 13. Having heard the learned counsel for the parties and on perusing the record, we find that it was not a fit case to condone delay, bring the LRs on record and to set aside the order of abatement, the High Court rightly rejected all the applications. 14. Admittedly, Ramesh Chander, the original plaintiff, appellant before the second appellate court, died on 14-12-2003; the appellant is the widow of Ramesh Chander and she had knowledge of the pendency of the second appeal. Her plea that she was told by her husband that the counsel would inform about the hearing of the application, cannot be a ground to entertain the application for condonation of delay of more than seven years for preferring the petition for substitution. A petition for substitution was filed by Respondents 2 and 3 before the second appellate court. Respondents 2 and 3 had the knowledge of the death of Ramesh Chander and, therefore, they filed petition for substitution vide CM No. 4841-C of 2010. However, they withdrew the aforesaid application for substitution which was followed by petition for substitution filed by the appellant Karam Kaur. In the petition for substitution filed on behalf of Respondents 2 and 3, it was not stated that vide deed of family settlement dated 21-1-2010 executed between the LRs of Nasib Chand (including Respondents 2 to 5 to the appeal) and other legal heirs of Ramesh Chander the right to sue survived only on the appellant Karam Kaur. In the petition for substitution filed on behalf of Respondents 2 and 3, it was not stated that vide deed of family settlement dated 21-1-2010 executed between the LRs of Nasib Chand (including Respondents 2 to 5 to the appeal) and other legal heirs of Ramesh Chander the right to sue survived only on the appellant Karam Kaur. Apart from the fact that the aforesaid family settlement was not brought on record by Respondents 2 and 3 before the second appellate court while the petition for substitution was filed, so-called family settlement dated 21-1-2010 cannot be relied upon to exclude the other legal heirs who had a right to be substituted due to the death of the original plaintiff Ramesh Chander. 15. We find no merit in these appeals. The appeals are, accordingly, dismissed. No costs.” 11. By way of relying this judgment he submits that in the similar facts and circumstances which has been heard by this Court the Hon’ble Supreme Court has not condoned the delay for restoring the petition which was dismissed for non-prosecution. He further relied in the case of “Katari Suryanarayana And Others v. Koppisetti Subba Rao And Others” reported in 2009 11 SCC 183 . “13. The parties hereto were neighbours. They were fighting over the right to use a lane which connects their respective residential houses. It is, therefore, difficult for us to appreciate that the appellant was not aware of the dates of death of Respondents 2 and 3. 14. It may be true that a distinction exists where an application for setting aside of the abatement is filed in a suit and the one which is required to be filed in a second appeal before the High Court but the same, in our opinion, by itself may not be sufficient to arrive at a conclusion that the parties were not aware of the consequences thereof. 15. The appellants themselves rely on the provisions of Order 22 Rule 10-A of the Code of Civil Procedure, which was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976. It does not, however, provide for consequences. 15. The appellants themselves rely on the provisions of Order 22 Rule 10-A of the Code of Civil Procedure, which was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976. It does not, however, provide for consequences. It does not take away the duty on the part of the plaintiff or the appellant, as the case may be, to file an application for condonation of delay in bringing on record the heirs and legal representatives of a deceased plaintiff/appellant or defendant/respondent within the period prescribed. 23. It is not in dispute that the appellants were neighbours. They were co-sharers. The respective dates of death of Respondents 2 and 3, thus, were known to them. It is difficult to conceive that the petitioners were not in touch with their learned advocates from 1999 to December 2006. If not every week, they are expected to contact their lawyers once in a year. Ignorance of legal consequence without something more would, in our opinion, not be sufficient to condone such a huge delay. The appellants are literates. They have been fighting their cases for a long time.” 12. By way of relying on this judgment, Mr. Choudhary, the learned counsel for the respondent submits that the parties are cousin brothers and the dispute is with regard to land and building. He further submits that he is the cousin brother and the version of the petitioner in CPM cannot be relied upon. He further relied in the case of “Kirpal Kaur v. Jitender Pal Singh And Others” reported in 2015 9 SCC 356 . “21. The execution of the alleged gift deed by the deceased first defendant in favour of the second defendant is also hit by Section 52 of the Transfer of Property Act, 1882, as the said deed was executed during the pendency of the proceedings and before the expiry of the period of limitation for filing SLP. “21. The execution of the alleged gift deed by the deceased first defendant in favour of the second defendant is also hit by Section 52 of the Transfer of Property Act, 1882, as the said deed was executed during the pendency of the proceedings and before the expiry of the period of limitation for filing SLP. Further, during the pendency of these proceedings, the second defendant, who has claimed to be the alleged beneficiary of the suit Schedule “B” property on the basis of alleged gift deed should have sought leave of this Court as the donee and brought the aforesaid fact of execution of the alleged gift deed in respect of “B” schedule property by the deceased first defendant, which property has been devolved in his favour, to the notice of this Court as provided under Order 22 Rule 10 CPC and defended his right as required under the law as laid down by this Court in a catena of cases. 24. The factum of the said alleged gift deed was not made known to this Court by the second defendant who is the beneficiary of the said gift deed till the last stage of conclusion of submission by the learned counsel. Reliance has been placed upon the decision of this Court in Dhurandhar Prasad Singh at paras 6, 7 and 8 with regard to the abovesaid proposition of law, the relevant paras from the above judgment are extracted hereunder: (SCC pp. 541-42) “6. In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, Rules 3 and 4 whereof prescribe procedure in case of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the court on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit but if such an application is not filed within the time prescribed by law, the suit shall abate so far as the deceased party is concerned. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit other than those referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject-matter of the suit has devolved upon another during its pendency but such a suit may be continued with the leave of the court by or against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree…. 7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrab-Ul-Din he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath Roy Chowdry v. Rookea Begum, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings. 8. The effect of failure to seek leave or bring on record the person upon whom the interest has devolved during the pendency of the suit was the subject-matter of consideration before this Court in various decisions. In Saila Bala Dassi v. Nirmala Sundari Dassi T.L. Venkatarama Aiyar, J., speaking for himself and on behalf of S.R. Das, C.J. and A.K. Sarkar and Vivian Bose, JJ. laid down the law that if a suit is pending when the transfer in favour of a party was made, that would not affect the result when no application had been made to be brought on the record in the original court during the pendency of the suit.” (emphasis supplied) 25. The legal principles laid down in the aforesaid paragraphs from the judgment referred to supra would clearly go to show that this Court has laid down the legal principle to the effect that the absence of any leave sought by the second defendant on the ground that his interest has devolved upon the Schedule “B” property of the deceased first defendant, would not affect the relief sought by the plaintiff during the pendency of the proceedings before this Court when no application has been submitted either by the plaintiff or by the second defendant in this regard.” 13. By way of relying on this judgment, Mr. Choudhary, the learned counsel submits that the parameters which have been considered by the Hon’ble Supreme Court with regard to Order XXII Rule 10 CPC application is not fulfilled and in that view of the matter, the CMP as well as the other IAs which have been filed are fit to be rejected. 14. Choudhary, the learned counsel submits that the parameters which have been considered by the Hon’ble Supreme Court with regard to Order XXII Rule 10 CPC application is not fulfilled and in that view of the matter, the CMP as well as the other IAs which have been filed are fit to be rejected. 14. This Court has examined the rival submission of the parties and on perusal of the paragraph no.8 of the CMP, it transpires that the contention which has been raised by the petitioner in the CMP is contradictory in itself. The parties are cousin brothers and sisters and the version of the petitioner cannot be accepted. The IAs filed for substituting the legal heirs/successors and for condoning the delay in filing the CMP is also filed without explaining the delay of 11 years 123 days and 301 days respectively. The other legal heirs/successors of the respondent and the legal heirs/successors of the appellant have not been brought on record as yet. Inspite of the admitted fact that the appellant has also died subsequent to the order dated 09.10.2014, in absence of any sufficient reasons shown by the petitioner about the huge delay of 11 years 123 days and 301 days respectively is not justified in the said I.As meant for condoning the delay. This Court further finds that the leave of this Court has not been sought by the petitioner for pursuing this CMP as well as SA with regard to the other legal heirs/successors of the sole respondent. In this context, the maxim vigilantibus non dormientibus jura subvenient (law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case at hand. The petitioner simply by throwing the blame on respondent counsel claimed that irrespective of the enormous delay of 11 years 123 days and 301 days respectively in filing the aforesaid petitions should be condoned. 15. As a cumulative effect of the above discussion, this Court finds that no sufficient cause has been raised either in the CMP or in the petition for condoning the delay in filing the substitution petition as well as the CMP. The prayer of the petitioner fails. The CMP [being C.M.P. No.392 of 2015] and the IAs are dismissed.