HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This is to consider an application under order No. 22, Rule 4 of the CPC filed by the appellants.

2. Heard the Learned Advocate appearing for the appellants at length and in full over the application under hearing.

3. Perused the record and the application. Considered.

4. Having heard the Learned Advocate appearing for the appellants and on perusal of the record it appears to us that the appellants have stated clearly and categorically in the application that during pendency of the instant appeal, the respondent Nos. 2 & 4 have died intestate leaving behind their legal heirs. But the petition filed by the appellant goes to show that the appellants have not mentioned the actual date of death of the said respondent Nos. 2 & 4 to ascertain as to whether the application has been filed within 90 days as per article 120, Limitation Act, 1963 or not. Also the appellants have not filed any copy of death certificates of the said two respondents in support of their claim.

5. The time limit prescribed under the Limitation Act (Article 120, Limitation Act, 1963) for filing of application under order No. 22, Rule 4 of the CPC is 90 days from the date of death of the said respondents. Without death certificate or without mentioning the date of death in the application it cannot be said that the said application has been filed within 90 days from the date of death of the said respondents. In such a situation, we may find that the application has not been filed in proper form and the said application is not maintainable in law and is liable to be dismissed.

6. Learned Advocate appearing for the appellant in support of his argument has relied upon the judgment of the Hon’ble Apex Court reported in 2008(8) SCC 321. However, reliance of this judgment in the adjudication of this matter, facts being at variance, would be misplaced.

7. In the result, the application under order 22, Rule 4 of the CPC is dismissed.

8. The application being No. 880/2022 is, thus, disposed of accordingly.

9. Upon perusal of the S/R in respect of respondent Nos. 2 & 4, it appears to us that notices upon the respondent No. 2, Samarendranath Lahiri and upon the respondent No. 4 Amarendra Lahiri have not been served due to death of said Samarendranath Lahiri and Amarendra Lahiri. Postal authorities has made an endorsement that the respondent Nos. 2 & 4 passed away and they made an endorsement on 29.11.2019.

10. From the above, it is clear to us that respondent Nos. 2 & 4 passed away prior to 29.11.2019 that means four years have already been passed.

11. In such a situation, let the case against the respondent Nos. 2 & 4 be abated.