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Patna High Court · body

2008 DIGILAW 1256 (PAT)

Lal Keshri Devi v. Duleshwari Devi

2008-08-28

BARIN GHOSH, C.M.PRASAD

body2008
Judgment Barin Ghosh and C.M.Prasad JJ. 1. Order XXII Rule 3 sub-rule (1) of the Code of Civil Procedure provides, amongst others, that where sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause legal representative of the deceased-plaintiff to be made a party and shall proceed with the suit. Sub-rule (2) of Rule 3 of Order XXII of the Code provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased-plaintiff is concerned. Article 120 of the Schedule to the Limitation Act prescribes the time limit of 90 days to have legal epresentative of a deceased-plaintiff made a party. Therefore, if an application is not made within 90 days to make the legal representative of the deceased-plaintiff a party, the suit abates. 2. Rule 11 of Order XXlI of the Code provides that the provisions contained in the said Order shall apply to appeals and the word "plaintiff" shall be held to include an appellant. In the circumstances, if within 90 days an application is not made to make the legal representative of a deceased-appellant a party to the appeal, the appeal abates. 3. Rule 9 of Order XXII of the Code provides that where a suit abates, no fresh suit shall be brought on the same cause of action and, accordingly, when an appeal abates, it will have the same effect. Sub-rule (2) Rule 9 of Order XXII of the Code specifically authorizes a legal representative of the deceased-plaintiff or appellant to apply for an order to set aside the order of abatement. Sub-rule (3) of Rule 9 of Order XXII makes it abundantly clear that the provisions of Section 5 of the Limitation Act shall apply to. an application under sub-rule (2) of Rule 9 of Order XXII of the Code. Section 5 of the Limitation Act authorizes admission of an application after the period of limitation as prescribed, provided the applicant satisfies the Court that he had sufficient cause for not making the application within such period. an application under sub-rule (2) of Rule 9 of Order XXII of the Code. Section 5 of the Limitation Act authorizes admission of an application after the period of limitation as prescribed, provided the applicant satisfies the Court that he had sufficient cause for not making the application within such period. Therefore, when an application is made for setting aside abatement, it is the requirement of law that the applicant should satisfy the Court that he had sufficient cause for not making an application to make legal representative of the deceased-appellant a party to the appeal within the time prescribed therefor. Article 121 of the Schedule to the Limitation Act aliows 60 days time for making an cation for setting aside abatement. Although, within those 60 days time the application for setting aside abatement is required to be made but in the application the applicant must satisfy the Court that he had sufficient cause for not making the application for making the legal representative of the deceased-appellant a party to the appeal within the time prescribed. Therefore, once an application for setting aside the abatement is allowed, the court condones delay in making the application for making legal representative of the deceased-appellant a party to the appeal within the time specified therefor and accordingly the application for making the legal representative of the deceased-appeilant a party to the appeal becomes automatically within time specified for making such an application. Therefore, if an application is made for setting aside abatement prior to expiry of 150 days from the date of death of the sole appellant, alongwith a prayer for substituting his legal representative, and the application for setting aside abatement is allowed, the legal connotation would be that the application for substitution has been made within time. 4. In the instant case admittedly the application for setting aside abatement was made on the 108th day of the death of one of the appellants. There was, therefore, no necessity of making a separate application for condonation of delay in making the application for substitution, inasmuch as by the directions contained in sub-rule (3) of Rule 9 of Order XXII of the Code an application for setting aside abatement is an application for condonation of the delay in making an application for substitution. 5. There was, therefore, no necessity of making a separate application for condonation of delay in making the application for substitution, inasmuch as by the directions contained in sub-rule (3) of Rule 9 of Order XXII of the Code an application for setting aside abatement is an application for condonation of the delay in making an application for substitution. 5. There being no contention that there was no sufficient cause for delay in making the application for substitution, we allow the application for setting aside abatement and accordingly set aside abatement appliand record the death of the deceased-appellant and substitute him by his legal representative, as has been indicated in the application for substitution.