TMI Blog1977 (8) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... il, 1962 and praying for substitution of his widow in his place. The application was supported by an affidavit. Notice was served on the respondents in the appeal and objection was filed on the 15th of July, 1963 in the form of an affidavit stating that the appeal had abated since Banwari Lal had died on the 5th of February, 1962. Along with the affidavit, a certificate of the Pradhan of the Gaon Sabha concerned was also filed showing that Banwari Lal had died on the 5th of February, 1962 and not in the first week of April, 1962 as claimed by the applicant. It was on the 9th of July, 1962 that this Court had re-opened after the summer vacations. By an order dated 6-3-1962, B. D. Gupta, J. dismissed the application dated 9th July 1962 as hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be allowed. 3. It appears that on behalf of the applicant reliance was placed on the decision of this Court in Lachmi Narain v. Muhammad Yusuf, (AIR 1920 All 284) for the contention that the application for substitution dated 9th July, 1962 should be treated as an application for setting aside the abatement. The reference of that case seems to have been wrongly cited in the judgment of the court below. The decision was distinguished by the learned Additional District Judge on the ground that the application dated 9th July, 1962 made by the applicant gave no indication that it should be treated as an application for setting aside abatement. A further reason given by the 1st Additional District Judge for distinguishing the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of this Court in Lachmi Narain v. Muhammad Yusuf, (AIR 1920 All 284) (supra) and another decision of the Lahore High Court in Kirpa Ram v. Bhagat Chand (AIR 1928 Lah 746) were followed in this decision with approval by the Orissa High Court. I agree with the contention that the court below wrongly distinguished the decision of this Court in Lachmi Narain v. Muhammad Yusuf, (AIR 1920 All 284) (supra) and held that the application D/- 9-7-1962 could be treated as an application for setting aside the abatement and for bringing on record the heirs and legal representatives of the deceased respondent Banwari Lal. 5. Learned counsel appearing on behalf of the applicant further contended that merely because the application dated 18t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before relief under the said provision can be granted. In the above-mentioned decision, reliance was placed on the Division Bench decision of this Court in Mt. Kulsoomun Nissa v. Noor Mohammad (AIR 1936 All 666). The submission made is supported by two decisions cited above and must consequently prevail. 6. For the reasons given, this revision is allowed and the order of the court below is set aside. Accepting the position that Banwari Lal had died on the 5th of February, 1962 the application dated 9th July, 1962 having been made within 150 days excluding the period of the summer vacations, the question of condoning the delay in making the application for setting aside the abatement will not arise. The case will now go back to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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