Case Note & Summary
The petitioner, Smt. M. Girija, filed a writ petition under Article 226 of the Constitution of India challenging the order dated 28.01.2021 passed by the Senior Civil Judge, Maddur, on an I.A. filed on 01.01.2018 in R.A. No.51/2008. The petitioner was the appellant in R.A. No.51/2008 and respondent in RSA No.1773/2015. The respondents in the writ petition were the legal representatives of the deceased first respondent, Smt. B.S. Nagarathnamma, who died on 20.10.2016. The respondents filed an application under Order XXII Rule 9 read with Section 151 CPC, Order XXII Rule 4 read with Section 151 CPC, and Section 5 of the Limitation Act, 1963, seeking to set aside the abatement of the appeal and to bring the legal representatives on record. The trial court allowed the application, condoning the delay and setting aside the abatement. The petitioner contended that the application was filed beyond the period of limitation, as the appeal abated on 20.12.2016, and no sufficient cause was shown for the delay. The respondents argued that they were not aware of the proceedings and that the delay was due to the petitioner's failure to inform them. The High Court examined the records and found that the application was filed on 01.01.2018, more than one year after the death, and the respondents failed to provide any satisfactory explanation for the delay. The court held that the trial court erred in allowing the application without proper application of mind and without considering the limitation period. The court set aside the impugned order and restored the abatement of the appeal, allowing the writ petition.
Headnote
A) Civil Procedure - Abatement of Appeal - Setting Aside Abatement - Order XXII Rule 9 read with Section 151 CPC, Order XXII Rule 4 read with Section 151 CPC, Section 5 of Limitation Act, 1963 - The petitioner challenged the order allowing an application to set aside abatement and condone delay in bringing legal representatives of the deceased respondent on record. The court held that the application filed on 01.01.2018 was beyond the period of limitation as the death occurred on 20.10.2016 and the appeal abated on 20.12.2016. The respondents failed to provide sufficient cause for the delay of over one year. The court set aside the impugned order and restored the abatement. (Paras 1-10) B) Civil Procedure - Abatement - Limitation - Order XXII Rule 4 CPC, Article 120 of Limitation Act, 1963 - The court noted that the application to bring legal representatives on record must be filed within 90 days from the date of death. Since the application was filed beyond this period and no valid explanation was given, the appeal had abated. The court emphasized that the discretion to set aside abatement must be exercised judiciously and not arbitrarily. (Paras 5-8)
Issue of Consideration
Whether the Senior Civil Judge, Maddur, was justified in allowing the application to set aside abatement and condone delay in bringing legal representatives on record, despite the application being filed beyond the period of limitation and without sufficient cause.
Final Decision
The High Court allowed the writ petition, quashed the order dated 28.01.2021 passed by the Senior Civil Judge, Maddur, on I.A. filed on 01.01.2018 in R.A. No.51/2008, and restored the abatement of the appeal.
Law Points
- Abatement of appeal
- setting aside abatement
- limitation for filing application to set aside abatement
- sufficient cause for delay
- Order XXII Rule 9 CPC
- Order XXII Rule 4 CPC
- Section 5 of Limitation Act
- 1963
