Case Note & Summary
The appellants, original plaintiffs in a suit for cancellation of sale deed and permanent injunction, filed Regular Civil Appeal No.160 of 2010 against the dismissal of their suit. During the pendency of the appeal, respondent No.4 died on 12/08/2011. The appellants learned of his death on 19/10/2013 and filed an application for bringing his legal representatives on record. The appellate court rejected the application on 17/01/2014 on the ground that it was a simpliciter application without a prayer for condonation of delay, and consequently held the appeal abated. The appellants filed a second appeal under Section 100 CPC. The respondents raised a preliminary objection that the second appeal was not maintainable as an appeal under Order XLIII Rule 1(k) CPC was available. The High Court rejected the preliminary objection, holding that the second appeal was maintainable as the appellants were challenging both the rejection of the application and the abatement order. On merits, the High Court held that while an application for bringing legal representatives filed beyond limitation must be accompanied by an application for condonation of delay under Section 5 of the Limitation Act, the appellate court should have granted an opportunity to the appellants to cure the defect instead of summarily rejecting the application. The High Court set aside the orders of the appellate court and remitted the matter for fresh consideration, permitting the appellants to file a proper application for condonation of delay.
Headnote
A) Civil Procedure - Abatement of Appeal - Setting Aside Abatement - Order XXII Rule 9 read with Section 5 of Limitation Act, 1963 - The appellate court rejected an application for bringing legal representatives on record on the ground that no separate application for condonation of delay was filed, and consequently held the appeal abated. The High Court held that the application for bringing legal representatives, if filed beyond limitation, must be accompanied by an application for condonation of delay under Section 5 of the Limitation Act, 1963. However, the appellate court ought to have granted an opportunity to the appellants to cure the defect instead of summarily rejecting the application. The order rejecting the application and the consequent order of abatement were set aside, and the matter was remitted to the appellate court for fresh consideration after permitting the appellants to file a proper application for condonation of delay. (Paras 4-6) B) Civil Procedure - Maintainability of Second Appeal - Order XLIII Rule 1(k) CPC - The respondent raised a preliminary objection that the second appeal was not maintainable as an appeal under Order XLIII Rule 1(k) CPC was available against the order refusing to set aside abatement. The High Court held that the second appeal under Section 100 CPC was maintainable as the order rejecting the application for bringing legal representatives and the consequent order of abatement were passed in the appeal, and the appellants were challenging both orders. The preliminary objection was rejected. (Para 3)
Issue of Consideration
Whether a second appeal under Section 100 CPC is maintainable against an order refusing to set aside abatement and dismissing an application for bringing legal representatives on record, and whether the appellate court erred in rejecting the application solely on the ground that no separate application for condonation of delay was filed.
Final Decision
The High Court allowed the second appeal, set aside the orders dated 17/01/2014 and the consequent order of abatement, and remitted the matter to the appellate court for fresh consideration. The appellate court was directed to permit the appellants to file a proper application for condonation of delay and then decide the application for bringing legal representatives on record in accordance with law.
Law Points
- Order XXII Rule 9 CPC
- Order XXII Rule 4 CPC
- Section 5 Limitation Act
- Order XLIII Rule 1(k) CPC
- Section 100 CPC
