Civil Appeals both stemming from disputes over specific performance of agreements to sell property that originated in the 1970s. The core issue in both appeals revolves around the abatement of second appeals due to the death of original parties (Om Prakash Gupta, Satish Chandra, and Rooprani) and the timeliness and necessity of substituting their legal heirs. The Court analyzes whether previous High Court decisions to dismiss the appeals as abated, or to recall orders restoring them, were justified, particularly concerning the interpretation of legal procedures for substitution and condonation of delay when a party dies. Ultimately, the Supreme Court overturns the High Court’s orders, emphasizing a justice-oriented approach and concluding that the appeals should be restored and heard on their merits with the legal heirs properly substituted.
(A) Civil Procedure Code, 1908, Order 22 Rule 1, 3 and 4 – Limitation Act, 1963, Section 5; Article 120 and 121 – Substitution of legal representatives – Abatement – Condonation of delay – Limitation – Rule 1 of Order 22, 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 22 – 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 Act, 1963 – 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 – 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; consequently, any application seeking to set aside the abatement must then be accompanied by a request contained in an application for condonation of delay under Section 5 of the Limitation Act in filing the application for setting aside the abatement – Thus, 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 question of condonation of delay, through an application under Section 5 of the Limitation Act, arises only after this period and not on the 91st day when the suit/appeal abates.
(Para 11)
(B) Civil Procedure Code, 1908, Order 22 Rule 1, 3 and 4 – Limitation Act, 1963, Section 5; Article 120 and 121 – Substitution of legal representatives – Abatement – Condonation of delay – Sufficient cause – Found it somewhat of a frequent occurrence that after abatement of the suit and after the 150th day of death, an application is filed for condonation of delay in filing the application for substitution but not an application seeking condonation of delay in filing the application for setting aside the abatement – 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 – Once the court is satisfied that sufficient cause prevented the plaintiff/appellant from applying for setting aside the abatement within the period of limitation and orders accordingly, comes the question of setting the abatement – That happens as a matter of course and following the order for substitution of the deceased defendant/respondent, the suit/appeal regains its earlier position and would proceed for a trial/hearing on merits.
(Para 11)
(C) Civil Procedure Code, 1908, Order 22 Rule 4 – Civil Procedure – Substitution of legal representatives – Whether the heirs of ‘O’ were required to file a separate application for substitution when, admittedly, an application for substitution had previously been filed by the heirs of ‘S’? – Held that Rule 4 of Order 22 lays down the procedure in case of death of one of several defendants or of sole defendant – It does not expressly provide who between the parties to a civil suit is to present an application for substitution – There seems to be no legal requirement that on the death of a defendant, an application for substitution in all cases has to be made by the plaintiff only and that, any application, made by the heir(s)/legal representative(s) of the deceased defendant seeking an order to allow him/them step into the shoes of the deceased defendant and to contest the suit, cannot be considered – Once an application has been made by either party and the court has been informed about the death of a party and who the heir(s)/legal representative(s) he has left behind, the only thing that remains for the court is to pass an order substituting the heir(s)/legal representative(s) – Held that the application moved by the heirs of ‘S’ whereby the court was informed by them of his death and the heirs that he had left behind, amounted to an application for substitution which was legally permissible and valid and deserved consideration.
(Para 16)
(D) Civil Procedure Code, 1908, Order 22 Rule 4, 10A – Civil Procedure – Substitution of legal representatives – Contention that the application filed by the heirs of ‘S’ was an application intimating the death of ‘S’ under Order 22 Rule 10-A, CPC and it was not an application under Rule 4 thereof; thus, there being no valid and proper application for substitution, the appeal was rightly held to have abated repelled – Held that the application filed by the heirs of ‘S’ was registered as a substitution application and the prayer was also for deletion of the name of ‘S’ and substitution of his three sons in his place – Held that an application having been filed by the heirs of ‘S’ , the heirs of ‘O’ were not legally obliged to apply separately for substitution – Law not having expressly mandated that an application for substitution has to be filed by the plaintiff/appellant upon receiving intimation of death, requiring a formal application from the plaintiff only will serve no tangible purpose – A justice-oriented approach has to be followed in interpreting the provisions of the CPC is the well settled law – High Court having been duly informed of the death of ‘S’, and substitution having been prayed by the heirs of the deceased, it ought to have proceeded to consider such application and pass an order bringing the heirs of the deceased respondent on record – Order dated 2nd January 2007 vide which the second appeal was dismissed as having abated cannot sustain and will have to be set aside.
(Para 17 to 21)
(E) Civil Procedure Code, 1908, Order 22 Rule 4, 10A – Substitution of legal representatives – Abatement of second appeal – Second appeal was restored by the High Court vide order dated 25th May, 2018 – This order, restoring the second appeal, was recalled vide order dated 11th January 2019 – The reason given was that, in the absence of an application praying for setting aside the abatement, the second appeal could not have been ordered to be restored – Held that find it difficult to agree with such reasoning – When an application praying for substitution had been made, then, even assuming that it does not have an explicit prayer for setting aside the abatement, such prayer could be read as inherent in the prayer for substitution in the interest of justice – Impugned orders as well as the order dismissing the second appeal as abated, under challenge held to be bad in law and the same deserves to be set aside.
(Para 22 to 24)
(F) Civil Procedure Code, 1908, Order 22 10A – Substitution of legal representatives – Abatement of second appeal – Rule 10-A casts a duty upon a pleader appearing for a party to the suit to intimate the court about the death of such party – It further provides that once the court is informed by the pleader of a party that he is no more, the court “shall” notify the opposing party of the death – A straightforward interpretation of this rule would suggest that the court’s obligation to issue notice to the other party is indeed mandatory – Nonetheless, this obligation may not arise in all circumstances – One notable exception could be when the information regarding the party’s death is conveyed to the court in the presence of the opposing party’s pleader or is documented by the court in the order sheet – In such cases, if the pleader of the concerned party (and consequently the party itself) has already been notified, issuing a further notice from the court would not serve any substantial purpose other than being an exercise by way of abundant caution – Therefore, in the aforementioned scenario, the absence of a notice from the court would not imply a failure to comply with Rule 10A, suggesting that it is not “always mandatory”.
(Para 29)
(G) Civil Procedure Code, 1908, Order 22 10A – Substitution of legal representatives – Abatement of second appeal – In the affidavit submitted alongside an application by ‘A’ which primarily was not intended to inform the court of ‘R’’s death, it was stated that he is “one of the sons of deceased ‘R’ – The inclusion of such pertinent information within an inconspicuous section of an application meant for a different purpose without the date of death does not constitute sufficient compliance with Rule 10-A either by the pleader of the deceased or amount to due notice to ‘O’ by the court (without such death being recorded in any order passed subsequently in the presence of counsel for Om Prakash) – To rule otherwise would undermine the intention of Rule 10-A, which mandates the clear communication of information relating to death of a party which, obviously, would mean not only the factum of death being conveyed but also the date of death since limitation to apply under Article 120 of the Limitation Act, 1963 for substitution begins to run from the date of death – The manner of conveying information of the death of ‘R’ was not wholly in accordance with Rule 10-A, information through the application of ‘A’ cannot operate adversely against ‘O’ – Had ‘O’ been noticed by the High Court in due compliance with Rule 10-A, yet, did not file an application for substitution, he would be estopped from pleading ignorance and we would have been inclined to hold otherwise – This not being the case, the abatement of the second appeal ought to be set aside – Although no application praying for setting aside of abatement was ever made by the appellants before the High Court, but prayer for setting aside of abatement can be read in a prayer for substitution – Accordingly, the abatement of the second appeal can and ought to be set aside for ends of justice.
(Para 30 to 32)
Om Prakash Gupta Alias Lalloowa (Now … V. Satish Chandra (Now Deceased)
Supreme Court: 2025 INSC 183: (DoJ 11-02-2025)
