Summary
Two second appeals by a defendant against specific performance decrees, held abated by the High Court, were restored. In the first, the deceased respondent's heirs had themselves applied for substitution, so the appellant's heirs needed no separate application. In the second, a passing mention of the plaintiff's death in an affidavit filed for another purpose was not compliance with Order XXII Rule 10-A CPC. A prayer for substitution may be read as including a prayer to set aside abatement.
Issues
- Whether an appeal abates for want of substitution when the heirs of the deceased respondent have themselves applied to be substituted, or whether the appellant must file a separate application.
- Whether an application for substitution without an express prayer to set aside abatement can support restoration of an abated appeal.
- Whether a statement in an affidavit, filed for another purpose, that the deponent is a son of the deceased respondent amounts to intimation of death under Order XXII Rule 10-A CPC so as to fix the appellant with knowledge.
- What is the proper sequence of applications for substitution, setting aside abatement and condonation of delay.
Provisions considered
- Order XXII Rules 1, 3 and 4, Code of Civil Procedure, 1908Rule 4 does not say who must present the application for substitution on a defendant's death. Following Union of India v. Ram Charan, an application by the deceased respondent's heirs informing the court of the death and the heirs left behind is a valid substitution application. (¶¶ 11, 14, 15, 16, 18)
- Order XXII Rule 10-A, Code of Civil Procedure, 1908The pleader of a deceased party must inform the court of the death and the court must notify the other party. Notice by the court may be unnecessary where the death is conveyed in the opposite pleader's presence or recorded in the order sheet. A mention tucked into an affidavit filed for another purpose, without the date of death, was not compliance. (¶¶ 27, 28, 29, 30, 31)
- Order XXII Rule 9(2), Code of Civil Procedure, 1908Noted through Mithailal Dalsangar Singh v. Annabai Devram Kini: a prayer to bring legal representatives on record may in substance be treated as a prayer to set aside abatement, and sufficient cause is construed liberally. (¶¶ 23, 32)
- Articles 120 and 121, Schedule, Limitation Act, 1963Substitution must be sought within 90 days of death (Article 120), failing which the suit or appeal abates. Setting aside abatement must be sought within 60 days of abatement (Article 121), giving a total of 150 days from death. (¶¶ 11, 30)
- Section 5, Limitation Act, 1963Condonation of delay arises only after the 150-day period, and should be sought for the delay in applying to set aside abatement, not for the delay in seeking substitution. 'Sufficient cause' is construed liberally in abatement matters (Perumon Bhagvathy Devaswom v. Bhargavi Amma). (¶¶ 9, 11)
- Article 136, Constitution of IndiaRelying on A. Subash Babu v. State of A.P., the Court set aside the High Court's 2007 abatement order although it was not itself under challenge, to cure a manifest illegality. (¶ 21)
Held
- Applications for setting aside abatement and for condoning delay in such applications are to be considered liberally. Courts ordinarily condone the delay where the respondent died while the appeal lay without hearing dates, the death was not reported to the court or notified to the appellant, and the appellant's claim of ignorance is not contradicted. (¶ 9)
- The proper sequence is: substitution within 90 days of death; if not, an application to set aside abatement within the next 60 days; thereafter, applications for substitution and for setting aside abatement together with an application under Section 5 for condoning delay in seeking to set aside abatement. Once sufficient cause is found, setting aside abatement and substitution follow as a matter of course. (¶¶ 10, 11)
- No law requires that substitution on a defendant's or respondent's death be sought only by the plaintiff or appellant. An application by the deceased respondent's heirs, registered as a substitution application and praying that they be substituted, was valid, and the appellant's heirs were not obliged to apply separately. Dismissing the appeal as abated while that application was pending was bad in law. (¶¶ 13, 16, 17, 18, 19, 20, 21)
- The Supreme Court may set aside a manifestly illegal order even though it is not under challenge before it. (¶ 21)
- Where a substitution application is made, a prayer to set aside abatement can be read into it in the interest of justice. The High Court erred in recalling the restoration of the appeal on the ground that no separate application to set aside abatement had been filed. (¶¶ 22, 23, 24, 32)
- Order XXII Rule 10-A requires clear, unambiguous communication of the death, including its date, since limitation under Article 120 runs from the date of death. A disclosure in an obscure part of an application filed for a different purpose did not satisfy the rule or amount to notice to the appellant, and could not be held against him. Had he been duly notified and still failed to apply, he would have been estopped from pleading ignorance. (¶¶ 29, 30, 31)
Result
Both appeals allowed. In the first, the heirs' 1997 substitution application allowed, the 2007 order holding the second appeal abated set aside and the appeal restored. In the second, the impugned orders and the abatement set aside and substitution granted. The High Court was requested to decide both second appeals on priority, preferably within six months; no costs.