Case: Harjeet Singh Vs. Raj Kishore and Others

2. When the Second Appeal No. 1433171 preferred by the present appellant was pending before the High Court of Allahabad, it appears that respondent 3 died on July 6, 1976. An application for substitution was made on October 18, 1976. This is undoubtedly after ninety days from the date of death but before the expiry of sixty days within which an application to set aside abatement has to be mover. We have seen the application made by the appellant requesting the Court to condone the delay and grant substitution. This application was rejected by the order dated September 19, 1979.Surprisingly, the present appellant should have challenged that order. It however appears that he waited till the matter was formally on board. The High Court on July 2, 1980 disposed of the appeal by observing that the appeal the order dated July 2, 1980 but not the order dated September 19, 1979.

Reasoning: 4. Having examined both the orders, we are satisfied that the High Court was in error in refusing substitution. There was delay of a few days and there was satisfactory explanation for the delay in seeking substitution. In the facts and circumstances of this case we, therefore, set aside the order dated September 19, 1976 and grant substitution. Once substitution is granted, the second order dated July 2, 1980 cannot survive and the appeal would not abate. Therefore the second order dated July 2, 1980 has to be set aside by us which hereby do.