JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. 2. No one turns up on behalf of the respondents in-spite of repeated calls. Hence, this appeal is heard ex-parte. 3. This appeal has been filed by the appellants under Section 100 of the Code of Civil Procedure against the impugned order and decree dated 28.06.2005 passed by the Additional District Judge FTC-III, Bokaro in Title Appeal No. 17 of 1999 whereby and whereunder, the learned first appellate court has dismissed the appeal filed by the appellants as the same has abated as a whole. 4. The brief facts of the case is that the respondents herein filed Title Suit No. 36A of 1991-1A of 1998 with a prayer to declare the allotments sought to be made by the defendant nos.1 and 2 in favour of defendant nos.3 to 8 is arbitrary, discriminatory, fake, illegal and void with further declaration that plaintiffs being a displaced person is only entitled to get the first preference in allotment and grant of permanent injunction. 5. The learned trial court vide its Judgment dated 8th March, 1999, partly decreed the suit on contest against some of the defendants and ex-parte against the rests of the defendants and declared that the rejection of the application of the plaintiffs for the allotment of a hotel plot in his favour by the defendant nos. 1 and 2 is wrong and illegal and further declared that the plaintiff is entitled for the allotment of a hotel plot similar to that of the defendant no. 4 of the suit considering his similar status of a displaced persons on the terms and condition as laid down in the notification for the same dated 24.04.1989. 6. Being aggrieved by the said impugned judgment and decree passed by the learned trial court, the appellants preferred Title Appeal No. 17 of 1999 in the court of District Judge, Bokaro which was ultimately disposed of by the impugned order of abatement and decree. Before the first appellate court, during the pendency of the said Title Appeal No. 17 of 1999, the respondent no. 1-plaintiff died on 03.06.2003 leaving behind his wife, two sons and one daughter and he has also furnished the names of the legal representatives of the deceased respondent no. Before the first appellate court, during the pendency of the said Title Appeal No. 17 of 1999, the respondent no. 1-plaintiff died on 03.06.2003 leaving behind his wife, two sons and one daughter and he has also furnished the names of the legal representatives of the deceased respondent no. 1 under Rule 10A of Order XXII on 21.07.2003 but the copy of the same was not served upon the counsel for the appellant namely Mr. Anwarul Hussain appearing in the record on 21.07.2003. The appellants filed a petition on 21.01.2004 for substitution of the heirs and legal representatives of the deceased respondent no. 1 along with a petition under Section 5 of Limitation Act supported with affidavit for condonation of delay on the ground that as the conducting Advocate Mr. Anwarul Hussain has left Bokaro unnoticed and has shifted his practice somewhere else without conveying the fact regarding the death of the respondent no. 1 to the appellants and the subsequent lawyer Mr. Sanjay Kumar Singh of the appellants who looked after the case came to know about the intimation of death of respondent no. 1 only on 13.01.2004 and the appellants for the first time came to know on 13.01.2004 about the death of the respondent no. 1-plaintiff. Hence, it was claimed that the petition for substitution of the legal representatives of the deceased respondent no. 1-plaintiff was within time. The lower appellate court took note of the fact that abatement of appeal for failure of bringing the legal representatives of the deceased respondent no. 1 on record within the prescribed period of 90 days as per article 120 of Limitation Act which entails automatic abatement of the appeal and specific order dismissing the appeal as abated is not mandatory and the appellant has to file an application for setting aside the abatement within 60 days from the date of abatement as per Article 121 of the Limitation Act and also took note of the fact that time for period of limitation automatically runs from the date of the death of the plaintiff-defendant-respondent as the case may be and not from the date of knowledge of death by the party in case of Article 120 and date of abatement in case of Article 121 of the Limitation Act. The learned first appellate court also took note of the fact that undisputedly, the fact remains that learned counsel for the respondent no. 1 filed a petition under Rule 10A of Order XXII of Code of Civil Procedure on 21.07.2003 informing the death of the respondent no. 1 who died on 03.06.2003 with detailed list of the legal representatives of the deceased respondent no. 1. So the appeal stood abated on 01.08.2003 after a lapse of 90 days since the death of the deceased and period to file setting aside the abatement has also expired according to Article 121 of the Limitation Act on 31.10.2003 but no prayer for setting aside the abatement was made in the petition though a petition for condonation of delay was filed for particularly under Section 5 of the Limitation Act. Both the petitions, i.e a petition with a prayer for substitution of the legal representatives and the petition for condonation of delay was filed on 21.01.2004. The learned first appellate court also took note of the fact that the appellants remained present through its lawyer in the appeal without any break after the date of information under Rule 10A of Order XXII of the Code of Civil Procedure. Hence, it cannot be said that appellant had no knowledge of the information given under Rule 10A of Order XXII of Code of Civil Procedure and it was observed by the lower appellate court that perusal of the order sheet of the case record of Title Appeal No. 17 of 1999 reveals that continuous pairvi of the appellants through its lawyer has been filed. Hence, the first appellate court did not accept the contention of the appellants that the appellants were unrepresented due to absence of Mr. A. Hussain, the earlier counsel for the appellants and went on to observe that not even on a single date the appellant was unrepresented. The learned first appellate court took note of the fact that 04.12.2003 Shri S.K. Singh filed a fresh power to represent the appellants and on 18.11.2003, the earlier lawyer used to do pairvi hence, it do not find any gap in representing of the appellants through lawyer in the record hence, it was not satisfied with the ground that appellants had no knowledge regarding the death of the respondent no. 1 and came to the conclusion that the appellants were not prevented by any sufficient cause for making application to the court for setting aside the abatement for substitution of the legal representatives of the deceased and did not find any merit in the petition filed on 21.01.2004 by the appellants and rejected the prayer for substitution of the legal representatives of the respondent no. 1. and by discussing facts of the case came to the conclusion that non-substitution of the heirs and legal representatives after the death of the respondent no. 1-plaintiff is of such type that entire appeal has abated as decree was exclusively passed in favour of the plaintiff-respondent no. 1 and after dismissal of the prayer for setting aside the abatement, decree has become final as a right to appeal ceases because rest respondents are pro-forma respondents and went on to dismiss the appeal as abated as a whole. 7. At the time of admission of the appeal vide order no. 17 dated 20.10.2011 following two substantial questions of law were formulated: (i) Whether in absence of giving notice by the Court, as required under the provision of Order XXII Rule 10A C.P.C. the finding of abatement recorded by learned Courts below is vitiated? (ii) Whether the law laid down by the Supreme Court in Gangadhar and Another vs. Raj Kumar, AIR 1983 SC 1202 , is applicable to the cases in which the suit has been declared as abated? 8. Mr. G.M. Mishra, learned counsel for the appellants submits that as Rule 10A of Order 22 of Code of Civil Procedure which reads as under: “ORDER 22 RULE 10A 10A. 8. Mr. G.M. Mishra, learned counsel for the appellants submits that as Rule 10A of Order 22 of Code of Civil Procedure which reads as under: “ORDER 22 RULE 10A 10A. Duty of pleader to communicate to Court death of a party - 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 there upon 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.” (Emphasis supplied) Uses the word ‘shall’ both for a pleader appearing in the state statute coming to know of a death of a party to inform the court about it and also it cast a duty upon the court to give notice of such death once such information is given to the court to the other party. It is next submitted that in the absence of giving notice by the court as required under the provision of Order XXII Rule 10A of Code of Civil Procedure, the finding of abatement as recorded by the first appellate court in the impugned order and decree is vitiated. Hence, it is submitted that the impugned order of abatement and the consequential decree be set aside and the Title Appeal No. 17 of 1999 be restored to the file of the learned first appellate court by allowing the prayer of the appellants for substitution of the legal representatives of the deceased respondent no. 1. 9. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the second substantial question of law regarding applicability of the law laid down by the Hon’ble Supreme Court in Gangadhar and Another vs. Raj Kumar (supra) is concerned, in the facts of that case the Hon’ble Supreme Court of India has observed in paragraph nos. 3 and 6 as under: “3. Now the fact remains that admittedly the appellants claim that they came to know about the death of the deceased-respondent when the present respondent moved an application for substitution. 3 and 6 as under: “3. Now the fact remains that admittedly the appellants claim that they came to know about the death of the deceased-respondent when the present respondent moved an application for substitution. Rule 10-A which has been added in Order XXII of the CPC by the Amending Act of 1976 provides that when a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the court about it and the court thereafter shall issue notice to the other party. In the case of an appeal, the word “suit has to be read as “appeal.” This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. The appeal lies dormant for years on end one cannot expect the other party to be a watch dog for day to day survival of the other party. When the appeal on being notified for hearing is activated, knowledge occasionally dawns that one or the other party has not only died, but the time for substitution has run out and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedural lapse, this very innovative provision has been introduced, whereby, a duty is cast upon the learned Advocate appearing for the party who comes to know about the death of the party to intimate to the court about the death of the party represented by the learned Counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client. 6. Sole respondent died on April 19, 1980. His adopted son applied for substitution which included intimation to the court of the death of the respondent as envisaged by Rule 10 A on July 1, 1981, that is, nearly one year and six weeks after the death of his adoptive father and promptly within two weeks appellants moved L.A. No. 2110 of 1981. And it is not made clear when notice of L.A. No. 1980/81 moved by the adopted son was served upon the appellants or their learned Advocate. And it is not made clear when notice of L.A. No. 1980/81 moved by the adopted son was served upon the appellants or their learned Advocate. The legislative intention of casting a burden on the learned Advocate of a 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 scoring a march over substantial justice Rule 10A was introduced by the CPC (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 a fact situation as the present one, we may preferably refer to Bhagwan Swaroop and Others vs. Mool Chand and Others. 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 sufficient cause in making the application for substitution within the prescribed period of limitation and the delay deserves to be condoned.” 10. 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 sufficient cause in making the application for substitution within the prescribed period of limitation and the delay deserves to be condoned.” 10. So this Court is of the considered view that the law laid down by the Hon’ble Supreme Court of India in Gangadhar and Another vs. Raj Kumar (supra) is to be considered by the courts when a prayer for substitution of the legal representatives of the deceased respondent is made after the abatement of the suit upon death of the party counting the limitation from the date of the death of the party to the suit concerned, with a prayer to condone the delay in filing the petition for substitution on the ground that the party to the suit praying for substitution of the legal representatives of the deceased party, came to know about the death of the deceased party to the suit, only upon the information furnished by the lawyer of the deceased party to the suit under Order-XXII, Rule-10 A of the Code of Civil Procedure. It being a settled principle of law that abatement takes place automatically after the expiry of the period of limitation prescribed therefor in article 120 and 121 of the Limitation Act, 1963 from the date of death of a party to the suit and even though no formal order of abatement is required to be passed by the court, hence it can very well be said that, the principle of law settled in the case of Gangadhar and Another vs. Raj Kumar (supra) is applicable to the cases in which the suit has been declared as abated. The second substantial question of law is answered accordingly. 11. So far as the first substantial question of law is concerned, the Hon’ble Supreme Court of India in the case of Perumon Bhagvathy Devaswom Perinadu Village (Dead) and Others vs. Bhargavi Amma, (2008) 8 SCC 321 has the occasion to consider the scheme of Rule 10A of Order XXII of Code of Civil Procedure in paragraph no. 17 which reads as under: “17. 17 which reads as under: “17. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10-A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the order-sheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be an indication of negligence or want of diligence.” (Emphasis supplied) 12. So, the plain reading of Rule 10A of Order XXII of Code of Civil Procedure in no uncertain manner envisages that court shall notify the death of a party intimated by the pleader of the party to the other party. 13. So after carefully going through the records of the case, this Court finds that undisputedly, there is no notice given by the court to the appellants regarding the death of respondent no. 1. It is also undisputed that copy of the intimation submitted by the learned counsel for the respondents under Rule 10A was not served upon the learned counsel for the appellants. There is no material to suggest that the fact of death of the plaintiff-respondent before the first appellate court was mentioned in the order sheet of the appeal. Under such circumstances, this Court has no hesitation in holding that the finding of abatement recorded by the first appellate court, in the absence of notifying the death of the respondent-plaintiff to the appellant by the court as required under Order XXII Rule 10A of Code of Civil Procedure to the appellants; is vitiated and can be termed perverse. 14. Accordingly, the impugned order of abatement and consequential decree made in the said appeal is set aside. The prayer for substitution of the respondent no. 1 is allowed. 14. Accordingly, the impugned order of abatement and consequential decree made in the said appeal is set aside. The prayer for substitution of the respondent no. 1 is allowed. The file of Title Appeal No. 17 of 1999 is restored to the court of Additional District Judge FTC-III, Bokaro or its successor court to pass the consequential orders after substitution of the legal representatives of the deceased respondent no. 1 like issue of notice to the legal representatives of the deceased respondent no. 1 who has been impleaded by assigning the serial number as defendants in the cause title of the appeal memo of the said Title Appeal No. 17 of 1999 and filing the use therefor et cetera. 15. In the result, this appeal is allowed but in the circumstances without any costs. 16. Let a copy of this order along with Lower Court Record be sent back to the learned court below forthwith.