Case Note & Summary
The case arises from a Regular Civil Suit No.158 of 1990 filed for redemption of mortgage. The suit was dismissed on 5th May 2001. The appellants (plaintiffs) filed Civil Appeal No.194 of 2001 before the District Court. During the pendency of that appeal, one of the respondents, Hindurao V. Lad, died on 25th May 2006. His legal heirs were not brought on record within the prescribed period of 90 days under Article 120 of the Limitation Act, 1963. The District Court dismissed the appeal on 2nd August 2008. The appellants then filed the present Second Appeal No.22 of 2009 before the Bombay High Court. Along with the appeal, they filed Civil Application No.81 of 2009 seeking condonation of delay in filing the application to set aside the abatement and to bring the legal heirs of Hindurao on record. The High Court, after hearing the parties, held that since Hindurao died during the pendency of the first appeal, the appeal had abated against him in the District Court itself. The application for setting aside abatement was not maintainable as it was filed beyond the period of limitation and no sufficient cause was shown. Consequently, the Second Appeal was dismissed as abated. The court also granted leave to amend the ground in the memo of appeal but ultimately dismissed the appeal.
Headnote
A) Civil Procedure - Abatement of Appeal - Failure to Bring Legal Heirs - Order 22 Rule 9, Code of Civil Procedure, 1908 - The appeal abated against the deceased respondent as his legal representatives were not brought on record within 90 days of his death. The application for setting aside abatement was filed beyond limitation and no sufficient cause was shown. Held that the appeal stands dismissed as abated. (Paras 1-5)
Issue of Consideration
Whether the Second Appeal is liable to be dismissed as abated due to failure to bring legal heirs of deceased respondent on record within the prescribed period of limitation.
Final Decision
The Civil Application No.81 of 2009 is rejected as not maintainable. The Second Appeal No.22 of 2009 is dismissed as abated. Leave to amend the ground in the memo of appeal is granted but the appeal is ultimately dismissed.
Law Points
- Abatement of appeal
- Condonation of delay
- Setting aside abatement
- Legal representatives
- Order 22 Rule 9 CPC
- Limitation Act 1963 Article 120
Case Details
2011 LawText (BOM) (10) 73
Second Appeal No.22 of 2009 with Civil Application No.81 of 2009
Mr. Dilip Bodake for the Appellants, Ms. Minal Kale i/b. Mr. P. G. Lad for Respondent No.1B
Shri Kumar S. Hadadare & Others.
Shri Vishnu N. Lad (since deceased) through his Legal Heir – Hindurao V. Lad & Others.
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Nature of Litigation
Second Appeal against dismissal of Civil Appeal in a mortgage redemption suit.
Remedy Sought
Appellants sought to set aside the abatement of the Second Appeal against deceased respondent and bring his heirs on record, and ultimately to allow the Second Appeal.
Filing Reason
The suit for redemption of mortgage was dismissed, and the first appeal was also dismissed. The appellants filed a Second Appeal, but the respondent Hindurao died during the pendency of the first appeal, and his legal heirs were not brought on record within limitation.
Previous Decisions
Regular Civil Suit No.158 of 1990 was dismissed on 5th May 2001. Civil Appeal No.194 of 2001 was dismissed on 2nd August 2008.
Issues
Whether the Second Appeal is abated due to failure to bring legal heirs of deceased respondent on record within limitation.
Whether the application for condonation of delay in filing application to set aside abatement is maintainable.
Submissions/Arguments
Appellants argued that the Civil Application for condonation of delay should be allowed.
Respondents opposed the application, contending that the appeal had abated and no sufficient cause was shown.
Ratio Decidendi
An appeal abates against a deceased respondent if his legal representatives are not brought on record within the period of limitation prescribed under Article 120 of the Limitation Act, 1963 (90 days). An application for setting aside abatement filed beyond limitation without sufficient cause is not maintainable.
Judgment Excerpts
Since Hindurao had died pending Civil Appeal No.194 of 2001 in the District Court, the said Appeal had abated against him in the District Court itself and, hence, there is no question of abatement of the Second Appeal as against him.
The Civil Application is, therefore, not maintainable and, hence, same is rejected.
Procedural History
Regular Civil Suit No.158 of 1990 filed for redemption of mortgage was dismissed on 5th May 2001. Civil Appeal No.194 of 2001 was filed by the appellants. During its pendency, respondent Hindurao V. Lad died on 25th May 2006. The appeal was dismissed on 2nd August 2008. The appellants then filed Second Appeal No.22 of 2009 along with Civil Application No.81 of 2009 for condonation of delay in setting aside abatement. The High Court dismissed the application and the appeal.
Acts & Sections
- Code of Civil Procedure, 1908: Order 22 Rule 9
- Limitation Act, 1963: Article 120
