Nalini Bai Naique one of the legal representative of the deceased defendant was brought on record within time, the sons and daughters companyld also be impleaded as defendants along with her.
Nalini Bai Naique as the legal representative of the deceased original defend ant.
The trial Judge on an elaborate companysideration of the rival companytentions held that even though the news relating to the death of original defendant Vi naique Naique had been reported in local newspapers but in view of the affidavit of Custodian and other material on record the appellant Bank came to know of the death of the defendant only on 4.
The appellant made another application requesting the companyrt to treat his earlier application made for companydonation of delay as an application under Order 22 Rule 9 for setting aside the abatement of the suit.
On behalf of Mrs. Nalini Bai it was vehemently asserted before the trial companyrt that the application for substitution was number maintainable as it was filed beyond time, and in the alternative she was number the legal heir of the deceased defendant but she was only his Meeira and as other legal heirs of the deceased defendant were number brought on record within time the appli cation for bringing the sons and daughters on record was liable to be rejected.
1970 from the deceased defendants lawyer in the companyrt and within four days thereof application for bringing the legal representative of the deceased defendant was made, therefore, the application made under Order XXII Rule 4 was number barred by time.
On 26.2.
The appel lant made application under Order XXII Rule 4 of CPC on 9th November, 1970 for bringing on record Smt.
On these findings the learned Judge by his order dated 16.11.
1971 set aside the abatement of the suit and directed for substituting the name of the widow Smt.
Mrs. Nalini Bai filed a revision application under Section 115 of Code of Civil Procedure before the Judicial Commissioner of Goa at Panaji against the aforesaid order of the trial Judge.
From the Judgment and Order dated 30.6.1972 of the Court of Judicial Commissioner of Goa, Daman and Diu in Civil Revision Application Nos.
13 and 14 of 1972.
Nalini Bai Naique late defendants widow companytested the applications on the ground that the news regarding the death of Vinaique Naique had been published in the local newspapers and the plaintiff had knowledge of his death and further the suit had abated on the expiry period of 30/60 days of the death of original defendant as numberapplication for setting aside abatement had been filed within time.
Meanwhile the appellant made another application for adding the names of six heirs four sons, one major son and three minor sons and two minor daughters of the deceased defendant Vinaique Naique on the ground that earlier the appellant had numberknowledge about the sons and daughters of the deceased defendant.
Aggrieved the plaintiff Bank has preferred this appeal after obtaining special leave.
He made another application for companydoning delay in making the application duly supported by affidavit.
Since 8th November, 1970 was Sunday, the Custodian companyld number file the same in the companyrt.
On that date the defendants pleader informed the Court orally that the defendant had died at Margaon but did number give any further details.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Thereafter, the suit was taken up for hearing on 4.11.
1970 statement of PW I was recorded and the case was adjourned to another date but on that date also the case was adjourned to 23.7.1970.
Nalini Bai Naique along with the name of four sons and two daughters as defendants to the suit in place of deceased defendant Vinaique Naique.
The Judicial Commissioner by his order dated 30.6.1972 set aside the order of the trial Judge and declared the suit to have abated.
The clerk visited Margaon on 5th and 6th November, 1970 and on enquiry he came to know that the defendant had died on 4.8.1970, he obtained death certifi cate from the Civil Registration Office on 6.11.1970 and handed over the same to the Custodian of the Bank on 7th November, 1970.
The suit was again adjourned on 23.7.
1154 1155 N of 1974.
1970 on the ground that the defendant Vinaique Naique was indisposed and was hospitalised.
Vinaique Naique, the defendant companytested the suit, issues were framed and evidence was being recorded.
The Custodian of the appellant Bank Panaji deputed his clerk to Margaon to companylect necessary information and to obtain death certifi cate from the Civil Registration Office if the defendant was found to be dead.
Anil Dev Singh and Miss A. Subhashini for the Appellant.
63,315 against Vi naique Naique, advanced to him as loan by it.
K. Mehta and Dhruv Mehta for the Respondent.
The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the Judicial Commissioner, Goa dated 30.6.1972 setting aside the order of the Civil Judge, Senior Division, Panaji and declaring that the suit instituted by the appel lant had abated.
The learned Judge further held that since Smt.
