7: Halima Khatun vs Abdul Karim And 7 Ors
2022 Latest Caselaw 2510 Gua

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GAHC010015032019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : I.A.(Civil)/521/2019

         ON THE DEATH OF ALI AKBAR, HIS LEGAL HEIRS REPRESENTING
         VILL.- JAHARPAM, MOUZA- GHILAJARI, P.O. AND DIST.- BARPETA, ASSAM

         1.1: MARIOM BEGUM
         W/O- LATE ALI AKBAR
         R/O- VILL.- JAHARPAM
          P.O. AND DIST.- BARPETA
         ASSAM
          PIN- 781314

         1.2: PATHAN SHEIKH KHOD MARTOZ ALI
          S/O- LATE ALI AKBAR
         R/O- VILL.- JAHARPAM
          P.O. AND DIST.- BARPETA
         ASSAM
          PIN- 781314

         1.3: ABUL FAZAL GULAM OSMANI
          S/O- LATE ALI AKBAR
         R/O- VILL.- JAHARPAM
          P.O. AND DIST.- BARPETA
         ASSAM
          PIN- 781314

         1.4: MOHIDUL ISLAM
          S/O- LATE ALI AKBAR
         R/O- VILL.- JAHARPAM
          P.O. AND DIST.- BARPETA
         ASSAM
          PIN- 781314

         1.5: ANJU MONOWARA BEGUM
          D/O- LATE ALI AKBAR
         W/O- AHMMAD ALI
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R/O- VILL.- NANGALKUR
P.O.- PAHUMARA
DIST.- BARPETA
ASSAM
PIN- 781308

1.6: AYESHA KHATUN
 D/O- LATE ALI AKBAR
W/O- ISMAIL KHAN
R/O- VILL.- KALJAR
 P.O.- KALJAR
 DIST.- BARPETA
ASSAM

1.7: HALIMA KHATUN
 D/O- LATE ALI AKBAR
W/O- AYNAL HOQUE
R/O- VILL.- GOROIMARI
 P.O.- GOROIMARI
 DIST.- BARPETA
ASSAM
 PIN- 78131

VERSUS

ABDUL KARIM AND 7 ORS.
S/O -LATE ALAUDDIN

2:NOOR ALAHI
 S/O- LATE ALAUDDIN

3:ATAUR RAHMAN
 S/O- LATE ALAUDDIN
ALL ARE RESIDENT OF VILL.- CHAPRA
 MOUZA- JANIA
 P.O. AND DIST.- BARPETA
ASSAM
 PIN- 781314

4:TAJURJAN NESSA
W/O- LATE ALAUDDIN

5:KHUDEZA BEGUM
 D/O- LATE ALAUDDIN

6:MAZEDA KHATUN
 D/O- LATE ALAUDDIN
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            7:FAZILA KHATUN
             D/O- LATE ALAUDDIN

            8:ATIGA KHATUN
             D/O- LATE ALAUDDIN
            ALL ARE RESIDENT OF VILL.- CHAPRA
             MOUZA- JANIA
             P.O. AND DIST.- BARPETA
            ASSAM
             PIN- 78131

Advocate for the Petitioner   : MR. R ALI

Advocate for the Respondent : MR. L TALUKDAR (R1-R3)

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

27.07.2022

Heard Mr. R. Ali, the learned counsel for the applicants and Mr. L. Talukdar, the learned counsel appearing on behalf of the respondents.

This is an application under Section 5 of the Limitation Act, 1963 for condoning the delay of 1902 days in filing the application for setting aside the abatement in so far as the sole appellant is concerned as well as for substitution of the legal representatives of the deceased appellant.

A perusal of the said application shows the connected second appeal was filed challenging the judgment and decree dated 20.06.2006 passed in T.A. No.21/2004. It further appears from a perusal of paragraph No. 2 of the said application that the applicants have stated that this Court vide an order dated 20.12.2006 was pleased to admit the appeal for hearing and the records of the trial court was called for. It has also been mentioned that Page No.# 4/5

this Court vide the order dated 20.12.2006 was pleased to stay the operation of the impugned judgment and decree passed by the learned Civil Judge, Barpeta in T.A. No.51/2004.

In paragraph No. 3 of the said application it has been mentioned that the appellant died on 09.08.2013 and that the applicants had no information about the case. However, on 03.10.2018, the applicant No. 2 received a notice from the learned Civil Judge at Barpeta and came to learn that the instant appeal has been dismissed. The said two paragraphs have been sworn as true to the knowledge of the applicants meaning thereby that the applicants had knowledge about the said proceedings and this aspect of the matter is further clear from a reading of paragraph No. 3 of the said application wherein the applicant No. 2 came to learn that the appeal was dismissed meaning thereby that the applicant No. 2 knew about the pendency of the appeal.

Under such circumstances, the reasons assigned in the application, in the opinion of this Court, cannot be said reasonable to condone the said delay of 1902 days in filing the application for setting aside the abatement as well as for substitution of the legal representatives of the deceased appellant.

It is necessary to take note the submission of Mr. L. Talukdar, the learned counsel appearing on behalf of the respondents who submits that the decree has already been executed and as such the rights upon the respondents have also accrued.

Under such circumstances this Court is of the opinion that the instant application lacks merit as it does not disclose any sufficient cause for Page No.# 5/5

condoning the delay.

Consequently, the instant application stands dismissed.

JUDGE

Comparing Assistant