1 1 S.B. CIVIL FIRST APPEAL NO.4/1986 (Laxmilal & Ors. Vs. Gambhir Singh & Ors.) Date of Order :: 12th January 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.G.R.Bhari,for the appellant. Mr.Anurag Shukla,for the respondent No.3 .... This first appeal has been preferred by the defendants- appellants against the judgment and decree dated 22.11.1985 as passed by the Additional District Judge No.2, Udaipur in Civil Suit No.1/1985 whereby the plaintiffs and the defendants Nos. 4 to 8 were declared owners of the property in question and were further held entitled to recover possession and mesne profits from the defendants Nos. 1,2 & 3 (appellants). An application (IA No.5259/2007) has been moved in this case on 25.09.2007 under Order XXII Rule 3 of the Code of Civil Procedure (CPC) with the submissions that the appellant No.3 Nand Lal had expired on 29.03.1989 and while stating the names of his legal representatives, it has been prayed that the applicants may be ordered to be taken on record. Thereafter, another application (IA No.13499/2008) has been moved on 25.09.2008, stated to be under Order XXII Rule 3 / Order XXII Rule 9 CPC read with Section 5 of the 2 Limitation Act but the submissions therein are only to the effect that the applicants received the notices issued by this Court in the name of the appellant No.3 Nand Lal and thus came to know about the pendency of this appeal and then engaged the counsel for conducting the case in the month of March, 2007. It is again stated that application may be allowed and the applicants may be taken on record as appellants. When this matter was taken up for consideration on 17.10.2008, though nobody appeared for the appellants but it was stated by the learned counsel appearing for respondent No.3 that the respondents Nos.1,6,13 & 14 had also expired on different dates. However, in the interest of justice, the matter was adjourned extending an opportunity for the appellants for making submissions; and the counsel for the respondent was given time to place on record the death certificate in relation to the respondents said to have expired. The death certificates have not been filed yet. In the given circumstances, the statement as made on behalf of the respondent No.3 about the demise of some other respondent is ignored for the present purpose. However, learned counsel for the contesting respondent has rightly pointed out that on the admitted facts that the appellant No.3 died on 29.03.1989, this appeal had abated and even in the 3 applications as moved, no prayer has been made for condonation of delay and setting aside of abatement. The applications as moved in this case, simply with the prayer for substitution of legal representatives without even a prayer for condonation of delay and setting aside of abatement cannot be granted. Moreover, the applications are lacking in material particulars. It is noticed that this appeal has jointly been filed by three appellants-defendants Nos.1,2&3. The application is supported by the affidavit by one of the proposed legal representatives but nothing has been stated in relation to the other appellants and there appears no reason as to why the requisite application for substitution could not have been moved within time by the other appellants. Having regard to the overall circumstances of the case, this Court finds no reason to consider setting aside of abatement. The appeal having abated be consigned to record as such. (DINESH MAHESHWARI), J. s.soni