THE HON’BLE SMT JUSTICE T.MEENA KUMARI CRP NOS.5177, 5178 and 4305 OF 2009 COMMON ORDER: As the issue involved in all these civil revision petitions is one and the same, they are being disposed of by this common order. CRP 4305 of 2009 arises out of IA No.620 of 2008, CRP No.5178 of 2008 arises out of I.A No.619 of 2008 and CRP No.5177 of 2009 arises out of I.A.No.618 of 2008 in O.S.No.223 of 1997 on the file of III Senior Civil Judge, City Civil Court, Secunderabad. IA No.618 of 2008 is filed under Order 22 Rule 9 of CPC seeking to set aside the order of abating the suit. I.A.No.619 of 2008 is filed under Section 151 of CPC seeking to reopen the suit which was decreed against defendant No.1 after his death. I.A.No.620 is filed under Section 5 of the Limitation Act to condone the delay of 3650 days i.e., almost 10 years in filing the petition to set aside the abatement. Revision petitioner herein is defendant No.2 and respondent Nos.1 and 2 are the plaintiffs. The facts of the case are that R1 and R2 (plaintiffs) herein filed the above suit against one M.Satyanarayna for specific performance of agreement of sale. As the sole defendant failed to file written statement, he was set ex parte on 29-04-1999 and subsequently the suit was decreed on 4-8-1999 directing the defendant to execute sale deed in respect of the suit schedule property in favour of the plaintiffs within three months, after receiving balance of sale consideration. The plaintiffs failed to deposit the same within the stipulated time, but later deposited with delay. Thereafter, EP was filed praying the Court to execute the sale deed but the same was not numbered and EA was filed to condone the delay in depositing the balance of sale consideration, which was numbered as EA No. 84 of 2001. The notice sent to the defendant returned with an endorsement that he died. Later, the plaintiffs filed a petition under Section 50 of CPC to implead the 2nd respondent (defendant No.2) as legal heir of the defendant. Then, the 2nd respondent entered appearance and filed counter stating that defendant No.1 died on 5.3.1998 in a motor accident along with his wife and the said fact was also brought to the notice of the Court by way of filing a Memo even before the suit was decreed. Subsequently, the said EA was dismissed. Challenging the same, CRP No.1023 of 2003 was filed and the same was also dismissed on 19-09-2007. Thereafter, the plaintiffs filed the present petitions. Learned counsel for the petitioner contended that though the factum of the death of the defendant was brought to the notice of the Court by filing a memo, the plaintiffs obtained decree without bringing the LRs on record and that the decree was passed against a dead person which is a nullity. He further contended that the observation of the Court below that the petitioner herein pursued the matter mistakenly because of lack of knowledge for the reason that in an earlier round of litigation, the respondents had knowledge about the death of the defendant in the suit against whom the suit was decreed and plaintiffs also contested the matter by filing a CRP which was dismissed on 19-09-2007 is without any basis. Per contra, the contention of the learned counsel for the respondents is that the plaintiffs have no knowledge the death of the defendant and the alleged memo was filed in the Section itself but not in the Court and that no notice was given to the counsel for the plaintiffs. Heard both the sides and perused the material available on record. The entire litigation revolves around the death of the sole defendant on 5.3.1998 in an accident. To that effect a memo dated 8.7.1999 was filed by the counsel appearing for the defendant in the suit, vide SR No.7269 of 1999. Thereafter, suit was decreed on 4.8.1999 against the sole defendant. Subsequently, plaintiffs filed EP (SR) No.13580 of 1999 for execution of the Decree. Notice was ordered in E.A.No.84 of 1999, which was returned with an endorsement that the “defendant died.” Then, EA No.122 of 2001 was filed seeking to implead the revision petitioner as LR of the sole defendant and the same was dismissed. Plaintiffs carried the matter in revision vide CRP No.1023 of 2003. The said CRP was dismissed observing as under: “Having regard to the findings arrived at by the Court below and clear serious laches on the part of the petitioners herein-decree holders, it is not open for them to seek any interference with the impugned order nor they are entitled to seek impleadment of the second respondent as legal representatives of the deceased-first respondent on record, in pursuance of the decree passed in the suit, which itself is void since it is against a dead person. Accordingly, the civil revision petition is dismissed. However, it is open for the petitioners-decree holders to avail the remedies available to them under law. There shall be no order as to costs.” After dismissal of the said CRP, the present applications were filed. On considering the entire material on record, the learned III Senior Civil Judge while allowing the petitions observed as under: “There is no dispute about the said proposition of law. But in the case on hand, petitions are filed to condone the delay, to set aside the abatement and to bring LRs on record. They are proper petitions to be filed. As already stated the reasons or the delay, though it appears to be abnormal is due to lack of knowledge and pursuing the matter mistakenly but there are no lack of bonafides on the part of the petitioners are deliberate delay caused by them. As such though the delay is very long in view of the peculiar facts and circumstances of the case, I feel it is just and expedient to allow all these petitions and give an opportunity to the plaintiffs to establish their case and to respondents to contest the claim of the plaintiffs.” The contention of the plaintiffs that no memo was filed and no intimation was given nor any copies are furnished as required under the provisions of the Code of Civil Procedure cannot be accepted, as the evidence on record is crystal clear that memo along with death certificate was filed on 8-7-1999 and after that, the ex parte decree was passed on 4.8.1999. Hence, it cannot be said that the plaintiffs are totally unaware of the death of the sole defendant. Further, no steps have been taken by them to implead the legal heir of the sole defendant. The Court below has not properly exercised its powers in allowing the petitions and condoning the unexplained and abnormal delay of 3650 days. Hence, impugned orders are liable to be set aside and are accordingly set aside. All the civil revision petitions are allowed, accordingly. No costs. ____________________________ JUSTICE T.MEENA KUMARI rkk 19-04-2010