ORDER 1. Heard on I.A.Nos.5005/2024, 5006/2024 & 5007/2024. 2. Aforesaid three applications have been filed in respect of substitution of legal representatives of respondent 1 – Avinash Sahay Johri. 3. I.A.No.5005/2024 has been filed under Order XXII Rule 4 CPC with the prayer for substitution of legal representatives on record; I.A.No.5006/2024 is for setting aside abatement; and I.A. No. 5007/2024 has been filed under section 5 of the Limitation Act, for condonation of delay in filing of the application for setting aside abatement. 4. A joint reply to the applications under Order XXII rule 4 and 9 CPC has been filed supported by affidavit, opposing the prayer for setting aside abatement and for substitution of legal representatives. For the reasons best known to legal representatives of respondent 1 – Avinash Sahay Johri, no reply to the application (I.A.No.5007/2024) under section 5 of the Limitation Act, has been filed. 5. It is contended by learned counsel for the appellants that respondent 1 – Avinash Sahay Johri had died on 3.2.2018 and an application under Order XXII rule 4(3) CPC informing his death was filed on 28.9.2021 by his pleader with the prayer for dismissal of appeal as having abated but, as previously engaged counsel for the appellants was elevated as a Judge of this Court, therefore, no step could be taken for making contact to the appellants and for filing application for substitution of legal representatives of respondent 1. He submits that even otherwise, after admission of second appeal on 6.12.2017, it was not listed upto 26.4.2023 and as the previous counsel was elevated as a Judge of this Court, therefore, the appellants were also not informed about progress of the appeal and ultimately when the appellants made contact to newly engaged counsel Shri Saket Malik, then on 6.12.2023 he sought 10 days time to move appropriate application for substitution of legal representatives of respondent 1, which was granted to him and thereafter within a period of 90 days, the aforesaid applications were filed on 6.3.2024. Learned counsel submits that as legal representatives of respondent 1 have not filed any reply/counter affidavit to oppose the application under section 5 of the Limitation Act, therefore, the same deserves to be allowed, and delay in filing of the application under Order XXII rule 9 CPC deserves to be condoned and resultantly after setting aside abatement, the appellants deserve to be permitted to substitute the legal representatives of respondent 1. Accordingly, he prays for allowing of the said applications. 6. Learned counsel appearing for legal representatives of respondent 1- Avinash Sahay Johri, with the support of reply submits that although previously engaged counsel for the appellants was elevated as a Judge of this High Court, but along with him Shri K.S. Jha, Advocate was also a counsel appointed by the appellants and he could move the requisite applications and as such, explanation of delay given in the application on the premise of elevation of previous counsel as a Judge of this Court, is not acceptable. He further submits that after filing of the application under Order XXII rule 4(3)of CPC on 28.9.2021, time to file application for substitution started and upon expiry of 90 days, the appeal had abated. He submits that there being no sufficient explanation of delay, the applications deserve to be dismissed. 7. Heard learned counsel for the parties and perused the record. 8. Undisputedly the respondent 1-Avinash Sahay Johri, had died on 3.2.2018 and after his death, an application under Order XXII Rule 4(3) CPC (not under Order XXII rule 10-A CPC) was filed on 28.9.2021 by the pleader of deceased respondent 1 with the prayer to dismiss the second appeal as having abated. 9. Record of second appeal shows that, it was admitted on 6.12.2017 and thereafter it was listed first time on 26.4.2023, then on 14.8.2023 and on these two dates, the application under Order XXII Rule 4(3) CPC was not taken into consideration. Thereafter on 6.12.2023 in the light of pending application under Order XXII rule 4(3) CPC, this Court upon request made by learned counsel for the appellants, granted time of 10 days to move appropriate application(s), thereupon said three applications were filed on 6.3.2014 by counsel Ms. Sanjana Sahni and Shri Saket Malik and ors.. 10. Hon'ble Supreme Court in the case of PERUMON BHAGVATHY DEVASWOM, PERINADU VILLAGE v. BHARGAVI AMMA (DEAD) BY LRS & ORS. Sanjana Sahni and Shri Saket Malik and ors.. 10. Hon'ble Supreme Court in the case of PERUMON BHAGVATHY DEVASWOM, PERINADU VILLAGE v. BHARGAVI AMMA (DEAD) BY LRS & ORS. (2008) 8 SCC 321 , has held as under:- “19. 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 - LRs 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. 20. 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.” 11. In view of the aforesaid discussion and in view of the fact that second appeal was not listed after 6.12.2017 till 26.4.2023 and prior to 6.12.2023, the application under Order XXII rule 4(3) CPC was not dealt with in any of the interim orders passed by this Court, therefore, and further in view of the fact that no counter affidavit has been filed regarding prayer for condonation of delay, this Court is of the considered opinion that delay in filing of the application under Order XXII rule 9 CPC deserves to be and is hereby condoned. 12. 12. It is pertinent to mention that upon death of a party, contract between the pleader and such party, comes to an end. As per provision contained in Order XXII rule 10-A CPC duty is cast upon the pleader to inform death of his party and if he is representing the sole respondent or one of the respondents, then he is not having any right to argue on behalf of dead person that because of death of his party, the appeal deserves to be dismissed as abated and this is for the Court to pass requisite orders about abatement of appeal or not. However, abatement takes place on its own force by passage of time i.e. automatically and it does not require specific order of the Court. 13. For ready reference, relevant provisions relating to contract between the pleader and party as well as duty of pleader, contained in Order III rule 4(1) and (2) of CPC & Order XXII Rule 10A of CPC, are quoted as under : “Order III Rule 4. Appointment of pleader (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment. (2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing singed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. [Explanation.—For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,— (a) an application for the review of decree or order in the suit, (b) an application under section 144 or under section 152 of this Code, in relation to any decree or order made in the suit, (c) an appeal from any decree or order in the suit, and (d) any application or act for the purpose of obtaining copies of documents 01 return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.] Order XXII Rule 10A. Duty of pleader to communicate to Court death of a party. Wherever 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.” 14. The aforesaid provision makes abundantly clear that after death of a party to the lis, the contract between the pleader and the deceased partysubsist only for the purpose of information of death to other party or to the Court and not to contest the appeal/suit by filing any other application along with the prayer for dismissal of appeal as having abated. In any case, if the pleader wants to file such application, then he can file the same only on behalf of legal representative(s) of the deceased party by filing fresh Vakalatnama/Power on his/their behalf. 15. As a result thereof, application under Order XXII rule 9 of CPC is also allowed and abatement stands set aside. Further, by allowing the application under Order XXII rule 4 of CPC, the counsel for the appellants is directed to substitute the legal representatives in the memo of second appeal as mentioned in I.A. No.5005/2024 in place of respondent 1 within a period of 7 working days, failing which this appeal shall stand dismissed without further reference to the Court. 16. Accordingly, I.A.5005/2024, 5006/2024 & 5007/2024 are allowed and disposed off. 17. Registry is directed to list this case for consideration of other pending application(s) immediately after substitution of LRs.