present case when the abatement had automatically set in, it could not have been set aside unless there was a proper application and a relief ... lost sight of that the abatement, if it had already set in, can be set aside if it is proved that the applicant was prevented
setting aside the abatement.
6. When an appeal is disposed of having abated and thereafter an application is made for setting aside abatement of appeal ... set aside and is hereby set aside.
11. Accordingly, the appeal is allowed; as a consequence of that, the application for setting aside the abatement
considered and allowed in the absence of an application for setting aside abatement under Order 22. Rule 9 of the C.P.C.
3. Learned ... set aside the abatement. If the Court determines both the questions in favour of the applicant, the abatement shall be set aside and the Legal
prayer for
setting aside the abatement. So also a prayer for setting
aside abatement as regards one of the plaintiffs can be
construed ... effect of setting aside
the abatement as the relief of setting aside abatement
though not asked for in so many words is in effect being
application for condonation of delay
in filing an application for setting aside abatement of appeal qua respondent
No. 1(i) Sudhakar Rao Dixit, as well ... application
under Order 22 Rule 4, 9, 11 of CPC for setting aside abatement as well as
for taking legal representatives of respondent
application. Thus, it is contended that in
absence of application for setting aside abatement, the present application
filed with unexplained delay of more than ... brought
on record within time and the application for setting aside
abatement was allowed by the trial Judge, the suit could proceed
on merits
prayer for setting aside the
abatement. So also a prayer for setting aside abatement as regards one
of the plaintiffs can be construed ... effect of setting aside the abatement as the relief of setting aside
abatement though not asked for in so many words is in effect being
application under Order 22, Rule 9 of CPC
for setting aside abatement of the appeal against the respondent no. 1 was for
the same purpose ... condonation of delay in filing of the application for
setting aside abatement of the appeal.
It was argued by learned counsel for the appellants that
2022-
application for condonation of delay in filing the application for setting aside
abatement in First Appeal No.117/2020, I.A.No.11312/2022 ... filing application for setting aside
abatement in First Appeal No.117/2020 is hereby condoned and abatement is
set-aside. F.A.No.117/2020
file application under
Order 22 Rule 9 of CPC for setting aside abatement. This Court while
remitting back the matter has observed that the application ... been given to the
respondent/plaintiff to file appropriate application for setting aside
abatement.
3 . The grounds taken in earlier application has been dealt with
