Order XXII CPC| Total Time-Frame For Filing An Application For Substitution And For Setting Aside Abatement Is 150 Days: Supreme Court
The Supreme Court has clarified that the prayer for setting aside of abatement can be read in a prayer for substitution.
The Supreme Court held that the total time-frame for filing an application for substitution and for setting aside abatement is 150 (90 + 60) days.
The Court set aside the Allahabad High Court’s decision abating the second Appeal by the deceased plaintiff in a decades-old property dispute. The Bench clarified that the prayer for setting aside of abatement can be read in a prayer for substitution.
A Bench of Justice Dipankar Datta and Justice Prashant Kumar Mishra held, “In the event the plaintiff/appellant derives knowledge of death immediately after the suit/appeal has abated, the remedy available is to file an application seeking setting aside of the abatement, the limitation wherefor is stipulated in Article 121 and which allows a period of 60 days. Therefore, between the 91st and the 150th day after the death, one has to file an application for setting aside the abatement. On the 151st day, this remedy becomes time-barred.”
Senior Advocates Thomas P Joseph and Shekar Devesa represented the Appellants, while Senior Advocate Raghenth Basant appeared for the Respondent.
Brief Facts
The Appeals arose from two separate suits for specific performance filed in the early 1970s. The plaintiffs had succeeded in obtaining decrees from the first Appellate Court in 1977, which were challenged in second Appeals by the defendant. The High Court granted a stay on execution but did not hear the cases for decades.
During this period, both the plaintiffs and the defendant passed away. While the legal heirs the plaintiff had filed a timely substitution application, the High Court overlooked this fact and abated the appeal entirely due to the lack of a separate application from the defendant’s heirs.
Court’s Analysis
The Court explained that Rule 1 of Order XXII of the CPC provides that when a party to a suit passes away, the suit will not abate if the right to sue survives.
“In instances where the right to sue does survive, the procedure for bringing on record the legal representative(s) of the plaintiff/appellant and the defendant/respondent are provided in Rules 3 and 4, respectively, of Order XXII. The suit/appeal automatically abates when an application to substitute the legal representative(s) of the deceased party is not filed within the prescribed limitation period of 90 days from the date of death, as stipulated by Article 120 of the Limitation Act, 1963,” the Court explained.
However, It could well be so that death of a defendant/respondent is not made known to the plaintiff/appellant within 90 days, being the period of limitation. Does it mean that the suit or appeal will not abate?
The answer in view of the scheme of Order XXII cannot be in the negative, the Court stated. “In the event the plaintiff/appellant derives knowledge of death immediately after the suit/appeal has abated, the remedy available is to file an application seeking setting aside of the abatement, the limitation wherefor is stipulated in Article 121 and which allows a period of 60 days.”
It further explained that “the total time-frame for filing an application for substitution and for setting aside abatement, as outlined in Articles 120 and 121 of the Limitation Act, is 150 (90 + 60) days.”
“The proper sequence to be followed, therefore, is an application for substitution within 90 days of death and if not filed, to file an application for setting aside the abatement within 60 days and if that too is not filed, to file the requisite applications for substitution and setting aside the abatement with an accompanying application for condonation of delay in filing the latter application, i.e., the application for setting aside the abatement,” the Bench emphasised.
The Court referred to its decision in Mithailal Dalsangar Singh v. Annabai Devram Kini (2003), wherein it was held, “The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court.”
“Hence, the impugned orders as well as the order dismissing the second appeal as abated, under challenge in the first of the two appeals, is bad in law; the same deserve to be set aside,” it held.
Consequently, the Court ordered, “While allowing Civil Appeal No. 13407 of 2024, the application for substitution filed by the heirs of Satish Chandra is ordered to succeed. We set aside the order dismissing the second appeal as abated. The said appeal is restored to its original file and number.”
Accordingly, the Supreme Court allowed the Appeal.
Cause Title: Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v. Satish Chandra (Now Deceased) [Neutral Citation: 2025 INSC 183]
Appearance:
Appellants: Senior Advocates Thomas P Joseph and Shekar Devesa; AOR A Velan; Advocates Navpreet Kaur, Rudraksh Gupta, Nilay Rai and Prince Singh
Respondent: Senior Advocate Raghenth Basant; AOR Abhigya Kushwah; Advocates Nishant Anand, Gunjan Bansal Anand, Anushasit Arya, Hima Bhardwaj, Shakib, Sandeep Sury and Sunita Singh
