( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 232 OF 2010 Sauda s/o Narayan Taware, R/o Ieet, Tq. Bhoom, Dist. Osmanabad. PETITIONER VERSUS 1. Manik s/o Dhondiba Sonar (Mahamuni) Died. 2. Kisan s/o Dhondiba Sonar (Mahamuni), R/o Dokewadi, Tq. Bhoom, Dist. Osmanabad. RESPONDENTS .... Mr. S.T. Ghute, advocate for the petitioner. Mr. S.R. Choukidar, advocate for the respondent No. 2. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 22nd June, 2010] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and by consent of learned counsel of the parties, heard finally. 2. By this petition, the petitioner impugns order dated 7th November, 2009 whereby his application (Exh-57) filed in suit (S.C.S. NO. 146/1997) for condonation of delay was ( 2 ) dismissed. 3. The petitioner is original plaintiff. He filed suit for specific performance of an agreement of sale dated 6th October, 1994 in respect of agricultural lands. The original defendant No. 1 Manik and the respondent No. 2 are real brothers interse. According to the petitioner, both of them had agreed to alienate the lands in question and, therefore, had executed the agreement of sale dated 6th October, 1994. 4. It is important to notice that deceased defendant No. 1 Manik and the petitioner entered into compromise during pendency of the suit. They filed the terms as per the settlement. Still, however, no separate disposal of the suit as per the terms against the deceased defendant No. 1 was ordered and the part of the claim was not allowed against him. It appears that deceased defendant No. 1 was residing at Latur and died on 6th June, 2005 during pendency of the suit. Petitioner, therefore, filed an application for substitution of the legal representatives and condonation of the delay. The learned Civil Judge (S.D.) held that the delay was not properly explained. He, therefore, rejected the application. ( 3 ) 5. Heard learned counsel for the parties. 6. The delay condonation application itself shows that death of deceased defendant No. 1 Manik occurred at Latur. This fact is not denied by the contesting defendant No.2. It is true that the mere fact that deceased defendant No. 1 Manik was residing at a different place by itself will not be sufficient to condone the delay. However, it can be said that the knowledge of his death may not be immediately available due to such fact of his being resident of a place which is situated much away from the residential place of the petitioner. It is also pertinent to notice that the legal representatives of deceased defendant No.1 Manik were not served with any notice. Moreover, the death of defendant No. 1 Manik was not informed to the Court as required under Order- XXII Rule-10A of the Civil Procedure Code. It is the duty of the opponent to inform about death and thereafter, the period of limitation would start running unless it is duly proved from the record that knowledge of the death could be attributed to the party who seeks impleadment of the legal representatives of a deceased party. In the present case, the petitioner vaguely stated that he had not avoided intentionally to file the application within limitation. He ( 4 ) submitted that due to the fact that deceased defendant NO. 1 Manik was residing at a different place, he could not file the application within the stipulated period. The learned Civil Judge has not ascribed any substantial reason to dislodge contention of the petitioner that the delay was unintentional. Nor it was considered that there was no compliance of Order- XXII Rule-10A of the Civil Procedure Code. Under these circumstances, the impugned order appears to be arbitrary and unsustainable. 7. In the result, the petition is allowed. The impugned order is set aside. Rule made absolute accordingly. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp232-10