Thakur Dass vs Aflatoon and Others

A.L. Bahri, J.—Suit filed by Thakar Dass for mandatory injunction for demolishing six rooms constructed by the defendants in a plot comprising Khasra Nos. 8/22 and 7/16/2 and for permanent injunction restraining the defendants from making any further construction and encroachment on the land comprising Khasra Nos. 8/21, 8/22, 7/16/2 or alienating the same was dismissed by the trial Court which judgment and decree were affirmed by lower appellate Court.

Thakar Dass has filed Regular Second Appeal No. 247 of 1978 In this Court. During pendency of the appeal Thakur Dass died on February 18, 1985. An application u/s 5 of the Limitation Act (Civil Misc. No. 3444-C of 1985) for condo nation of the delay and another application under Order 22, Rule 3 read with Section 151 of the CPC (Civil Misc. No. 3445-C/1985) for bringing on record fari Dev and Gurcharan Dev as legal representatives of Thakar Dass appellant ware filed it was mentioned in these applications that Thakar Dass had left behind a Will dated December 17 1981, a registered one, in favour of the applicants Hari Dev and Gurcharan Dev.

They contacted their counsel and came to know about the appeal. They had no knowledge about the period of limitation in the matter and could not move the application earlier within time. Notice of these applications having been given, a reply was tiled by the respondents opposing the same inter alia, alleging that Hari Dev, one of the applicants, had been prosecuting the case accompanying his father Thakar Dass and the applicants were fully aware of the pendency of the appeal. They further stated that in execution prccecdiugs an application was filed by Hari Devon April 11, 1585 for being impleaded as a party as legal representative of Thakar Dass. Annejuie R 1, certified copy of the '' application, was produced along with the reply. No coulter replication has been filed to controvert the allegations made therein.

After hearing counsel for the parties I find that no cogent reason has been put forth for condoning the delay Mere ignorance of the period of limitation prescribed i e. ignorance of law, per se, is no ground to condone the delay, 1 he applicants knew about the pendency of the appeal and in spite of the fact that they had approached the executing Court on April H, 1985, they did not approach this Court for being impleaded as legal representatives of Thakar Dass deceased appellant With the death of Thakar Dass the appeal has abated No eon id, mush less reasonable ground, has been made out to condone the delay, or for setting aside abatement. Both the applications sire dismissed. With the result the Regular Second Appeal is dismissed as abated. No order as to costs.