Madan Singh vs Phoolwati & Ors on 19 April, 2016

2. Notice of the appeal was issued and vide ex parte order dated 5th

November, 2007, subject to the appellant depositing Rs.7.50 lacs in this

Court, execution was stayed. The appellant filed CM No.16999/2007 for

modification of the order dated 5th November, 2007, seeking stay of execution

subject to deposit of Rs.2 lacs only instead of Rs. 7.50 lacs, as ordered. The

RFA No.561/2007 Page 1 of 16
said application came up before this Court on 12th December, 2007 when the

same was dismissed and it was made clear that the stay earlier granted stood

vacated. The appeal, on 19th February, 2008 was admitted for hearing and

ordered to be taken up for hearing in due course. The respondent no.1/plaintiff

died during the pendency of the appeal but steps for substitution of her legal

representatives were not taken within the prescribed time. Belatedly

applications for setting aside of the abatement, for condonation of delay in

applying therefor and for substitution of legal heirs of the respondent

no.1/plaintiff and for condonation of delay in applying therefor were filed and

notice of which was ordered to be issued. One of the legal representatives

namely Shri Kalu Ram appeared and accepted notice on behalf of all the legal

representatives and though repeatedly took time to file replies to the

applications but no replies were filed neither by the legal representatives of

the respondent no.1/plaintiff nor by the Advocate who had been intermittently

appearing on their behalf. Vide order dated 6th August, 2015, the applications

were allowed, delay in applying for setting aside of abatement of the appeal

and abatement of the appeal set aside, delay in applying for substitution of

legal representatives of the deceased respondent no.1/plaintiff condoned and

legal representatives substituted. On the same day, final arguments on the

RFA No.561/2007 Page 2 of 16
appeal were also heard from the counsel for the appellant and need to wait for

the counsel for the respondent no.1/plaintiff was not felt as the written

arguments were already on record and judgment reserved. The respondent

no.2 Shri Babloo, since also deceased and represented through legal

representatives, was the defendant in the suit along with the appellant and

though the respondent no.1/plaintiff had sought money decree against the

appellant and the respondent no.2/defendant jointly and severally but the suit

was decreed only against the appellant.

Source: Indian Kanoon

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