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2001 DIGILAW 993 (PAT)

Baji Lal Mishra v. Bhagwati Sharan Mishra

2001-10-19

RADHA MOHAN PRASAD

body2001
Judgment 1. A. No. 2265/2001 has come up on rejection of the prayer on behalf of the appellants for modification of the order dated 24.7.2001 passed by the Joint Registrar granting three weeks final time to serve a copy of the petition at Flag Q on the other side and also to file limitation petition for substitution petition at Flag Q. 2. It appears that in pursuance to the order of the Joint Registrar limitation petition was filed and the matter was contested before the Registrar (General) by the learned counsel for the appellants. According to him, there is no requirement to file a petition under section 5 of the Limitation Act for condonation of delay in filing of the petition at Flag Q as the same was filed under Order XXII Rule 9 C.PC. Learned counsel for the appellants has submitted that under Clause (2) of Order XXII Rule 9 C.P.C. the plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. According to the learned counsel, in view of the provision for substitution of the legal representative of the deceased plaintiff under Article 120 an application can be filed within 90 days and where there is an abatement and prayer for setting aside the abatement is made, the same can be filed within 60 days from the date of abatement under Article 121 of the Limitation Act. It is submitted that thus the total period for setting aside of abatement as prescribed is 150 days and the condonation of limitation would only arise after expiry of the said period and not where application is filed within the said period. 3. This Court finds substance in the said submission of the learned counsel for the appellants. It is submitted that thus the total period for setting aside of abatement as prescribed is 150 days and the condonation of limitation would only arise after expiry of the said period and not where application is filed within the said period. 3. This Court finds substance in the said submission of the learned counsel for the appellants. Section 5 of the Limitation Act provides that "any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period". The prescribed period for setting aside the abatement as per Article 121 is 60 days from the date of abatement, meaning thereby, that an application if filed within the total period of 150 days of the date of death of the plaintiff, appellant, defendant or respondent, as the case may be, within the prescribed time then for such purpose, in my opinion the provisions contained in Section 5 is not attracted. Thus, the order dated 24.9.2001 passed by the Registrar (General) cannot be held to be just and legal. 4. Accordingly, the order dated. 24.7.2001 passed by the Joint Registrar is modified to the extent that the appellants shall not be required to file limitation petition for a substitution as prayed in-the pptition at Flag Q. 5. Learned counsel for the appellants has pointed out that even earlier part of the order dated 24.7.2001 has not been complied. 6. However, as prayed, time till one week after Puja Holidays is allowed to serve copy of the petition at Flag Q on the other side.