IM THE HON • B L£ HIGH CX)U-aT OF CHHATTISGA&H AT' BIL.-CTUR SECO'lD ^PPEA N0. 11 ) OF 2004€ / fBPB.U.Wt ££FENB^iTN0.2 y Dev.Prasad son of, Bodhan Sur.yavanshi, ••(dead} wrongiy writ-fcen since alive .^.^.li AgricuJ-turist 8/0, village Kufra- Road,. Tahsil Janjgir Distriet Bilappur (M.'P.) (noibJanjgtr Ghanpa C.G.): : \ ' ; • St'Nl! B:.S3 'VERSUS BE^QtiaENTS ^ : ^ i,• L axmi Pras ad son of Shi vshgnk ar^ Prasad, aged 58 years. ^" -..^••'^*^^ ,<••'^s-:^t ».5?^?i 2. Badri Pr'asad son of Shivsh-ankaf ageel 53 years. ' ; 3., Ram' PYgri B ai widow of' Shiv- Shank'^r Erasgd, aged ©2years. •A3.i -3 restderif o£ vxM age •P amgarh Tahsil P amgarh, Da.-st't. •BiIaspU3:.(M.P.)- (Now Distt. Janjgir'Ghanpa C.G.)'. • PLAENT.tFES B.gm Pras ad son . of Bodhan : Suryavanshi (IDead). : , '5'^i.axi'ai Bai widow of Boxihan ' Suryayanshi (Kiead, ^irorigly: •B •f:S B II !: ! [• ; v -i ' shQMn''a.I.:ive J-HS-feead^of ^pellant) "it Both As^icul'feU3a'sf,^.^ca. . ' ::iagiE:ENIMQ';yQ*' 1-.&.3 ^P:EA.::UNDEa'SEGTH®l^,OF:(^DE;QF.:,GIMLI:^a^ ( Gl:ai.m in appeal ^valued •afe.Hs. .I4GQ/.-: onlyj'S: ^G!.e»Rai,d;;/£s.?aJ46,^f|]|{,i •B.eina, aggrieVed Mfch.lshe 3q8g^nt W^|86c;iV6;;i$^ N-^";. 17-4-^00 •^•ci\19-4-2000'.respe^ively'h8twe^::]&^^;^|g|gg,;|g;"|j|| ^nd Qthers,^Versus,'Ha;B':8.ras:ad,.:an4 o-ttisrs; b^ ,Sfaife.,.^i'tallft K3ffl;;: MS -v-! "< 'i:: ••• ':' '1: :^. -:1::.:^^^ '::'?-'%:-1''%''.-^ j—S'..: y^~"' i- ;•??::•'•';i{ -aa; HIGH COURT OF CHHATTISGARH AT BILASPUR SECONDAPPEALNO. 111/2004 Appellant ' : DevPrasad Respondents Vs Laxmi PrasadSi others ShriH.BAgrawal,Sr.AdvocatewithMs.SangeetaMis()ra,Advocate. Shri Laxmi Prasad Pandey, counsel for respondents. JUDGMENT (Deliveredon o8'01/20Q6) Heard onM ^C)P^to. 3190004, an applteatiofifor condonationof delay of 1311 dsys in filing theappeal. The instant appeal is directed against the impugned juctem®ntand decree dated 17.4.20(X) passed by 6th AdtliUonal Dlstrlct Judge, Bilaspur bywhich the cross appeal preferred by the appellant has been dismissed on the ground ofnon compliance ofthe High Court'sdirection in the order of remand dated 7.1Q.1998passed in Seconcl AppealNo.332®8. From perusal of the record it appears that byorder dated 07.10.1998 passed in Second Appeal No. 332/1998theGross appeal preferred by appellant herein-Dev Prasad was allow^l and judgmentanddecreedatecl 07.02.1998 pasaedinGivilAppeal No. 7-A/93wassetasKleandthecase was remanded to the lower appellate Cpurt with a direeBon to the appeltant heregn -Dev Prasad to-file appropriate applicatipn for removing the defect in thecross objection of CwilAppeal ^to. 7-A/93 on account of death of Ram Prasad (respondent No^^herein) ahd Laxmi Bai l(respondent No. 5 herein). After e orelerofremandthe appellantherein- IDevPrasad movedao application under Order22 RuteSofthe C.f.C. on —...,_—.- J m -2-— 02.02.2000 for bringing L.Rs. of deeeased?defendantsNo. 1 and 3on record. However, the above application was rejected by the lower appellate Court on ttie groundthat in the saidapplicationthe dateofdeath ofthe deceased/defsndants No. 1 and 3 is not mentioned and no appttcaflon for condoning the delay in fiting the above application for bringing L.Rs. on record, has been filed and there was no prayer for setting aside the abatement of the appeal, and as such on the aforesaid grounds the appllcation preferred by the appellant-Dev Prasad under Order 22 Rule 3 of Ihe C.P.C was rejected on 10.03.2000and accordingly, thecrossappeal has been dismissed for non-comptiance of the direcUons of the High Court in the remand order, with an observation ttiat judgment and decree dated 14.02.1994 passed in Civil Appeal No. 7-A/93 by VI Add'rtional Sessions Judge, Bitespur shall t>e deemed to be final. 4. Learned counsel for the appellant submits that appellantis an illiterate person and therefore,he was notable to understand pros and cons ofnot obeying Wedirections of the High Courtand the Court hascpmmitted an illegalityby not allowing the apptication for bringing L.Rs. on record as it was obligatory on the part of the lower appellate Court to consider the obseryations made in the judgment dated ^)7.10.1998 wherein it is mentioned that ttie judgment was nullity because of not bringingthe L.Rs. of the deceased/defendants No. 1 and 3 on record. He further submitted that the appellantwas not aware about the judgment and decre®dated 17.04.2000 and he came to know about the same only after notice of executlon. 5. On the other hand leamed counsel for the respondents submits that the appellant was duly represented by hte counsel who appeared before ttie appellate Court from 23.12.1999 to 21.02.2000andthereafter the appellant Was proceeded ex-parte on 08.03.2000, the appellant did not complywith the directions ofthe High Court and dM n^tfile an applicah'on for condonation of delay in filing the appljcaUooJpr substitution of L.Rs. •?> and ateo did not file an applicafion for setting aside the abatement of the counterclaimand in these cireumstances, there is no illegaltty in the impugned order. Even othprwise the explanation of delay of almost four years in filing theappeal is not sufficieht and the appeat is hopelessty barredbyfimitation. Taking Into consideration ttie inbrdinate delay of almost four yeais in filing the appeal and further Gonsidering that the eross appeal has been dismissed bythe Courts belowon accountof non-cpmplianceofdirecUons of the High Court in the remand order, the application for condonation of delay in filing the appeal is rejected. Consequently, the appeat is also dismissed. Sd/- DIiirendra Mishra Judge llllil