2007 Supreme(SC) 1083
ARIJIT PASAYAT, D.K.JAIN
Ramdas Shivram Sattur – Appellant
Versus
Rameshchandra Popatlal Shah – Respondent
Judgement Key Points
- The Supreme Court of India decided the appeal on 20-08-2007, arising from a Bombay High Court second appeal. (!) (!)
- Challenge was to the Bombay High Court's order in a second appeal under Section 100 CPC, where an application under Order XLI Rule 19 CPC sought to set aside dismissal for non-prosecution against respondents 3 and 6, and to bring legal representatives of deceased respondent 3 on record. [1000411590001]
- Suit involved a plot owned by Shivram, father of appellant and respondent 3 (Tarabai, nominee in society records); after Shivram's death, plot transferred to Tarabai, who agreed to sell to plaintiffs (respondents 1 and 2) but did not execute sale deed, leading to suit against Tarabai, her children (defendants 3-6), and cooperative society. (!)
- Trial court held Tarabai executed agreement and breached in collusion, directing defendants 1 and 3 to execute sale deed; first appeal dismissed, confirming decree. (!) (!)
- Second appeal admitted on 20.6.1986 with stay; dismissed in default against respondent 3 (Tarabai) and 6 on 20.3.1987 for non-prosecution and non-removal of objections; later restored in part on 6.4.1999. (!) [1000411590003]
- Subsequent application for restoration against respondents 3 and 6 allowed for respondent 6 but refused for respondent 3 by High Court. [1000411590002][1000411590005]
- Appellant and respondents 5,6,7 are legal heirs of deceased respondent 3 (Tarabai); some already on record, and prior order noted them as such. [1000411590006][1000411590008][1000411590012]
- Abatement under Order XXII Rule 9(2) CPC is automatic for failure to bring legal representatives on record within limitation period, but a prayer to bring legal representatives on record, if allowed, sets aside the abatement. [judgement_act_referred]
- High Court not justified in refusing restoration for respondent 3, as she is deceased and her legal representatives (appellant and respondents 5,6,7) are already on record, so appeal does not abate against her. [1000411590012][judgement_act_referred]
- Appeal allowed, with no order as to costs. [1000411590013]
JUDGMENT
Dr. ARIJIT PASAYAT, J.—
1.Leave granted.
2.Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay High Court in the Second Appeal filed by the appellant; the defendant no.3 in Special Civil Suit No. 42 of 1981; before the High Court under Section 100 of the Code of Civil Procedure, 1908 (in short CPC). During pendecny of the appeal, an application was filed in terms of Order XLI Rule 19 of the CPC for setting aside the order dated 20.3.1987 passed by the learned Additional Registrar whereby he dismissed the second appeal against respondent nos.3 and 6 for non-prosecution. The prayer was also made to show the names of the applicant i.e. present appellant and respondent nos.5 to 7 in the second appeal as legal representatives of the deceased-respondent No.3. By the impugned order the High Court while accepting the prayer vis-‘-vis respondent no.6 dismissed the same so far as respondent No.3 is concerned.
3.A brief reference to the factual aspects would be necessary :
“The suit plot was owned by one Shivram i.e. the father of the appellant and respondent no.3. Name of respondent no.3 Tarabai was shown as nominee in the Cooperative Housing Societys
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