ORDER

R.V.RAVEENDRAN, J. - Leave granted.

2. This appeal is by the appellant in Second Appeal No.147 of 1993 on the file of the High Court of Kerala. During the pendency of the said appeal, the second respondent before the High Court, died on 17.4.2002. In that behalf, the appellant filed the following three applications on 9.10.2003 : (i) an application to set aside the abatement of the appeal against second respondent in the second appeal; (ii) an application to condone the delay in filing the said application to set aside the abatement; and (iii) an application to bring on record, the LRs of the deceased second respondent in the second appeal. The High Court, being of the view that the delay of 394 days was not satisfactorily explained, dismissed the application for condonation of delay as also the application for setting aside the abatement and consequently, dismissed the application for bringing the LRs on record, by three separate orders dated 5.10.2005. As the deceased second respondent in the second appeal was the sole plaintiff in the original suit from which the second appeal arose, the second appeal was closed on 5.10.2005, as having abated. The said four orders are challenged in this appeal by special leave.

3. The appellant contends that there was no negligence or laches on its part and it had satisfactorily explained the reasons for the delay which were due to circumstances beyond its control. The appellant, a Devoswom managed by a Committee, gave the following explanation for the delay: When the second appeal was filed in 1993, it was managed by an earlier Managing Committee. Later in a suit relating to the management of the Devoswom, the Sub-Court, Kollam appointed a Receiver to manage the Devoswom. Thereafter elections were held on 25.5.2003 and the newly elected Committee of Management assumed office on 8.6.2003. The new Committee of Management was unaware of the pendency of the second appeal and, therefore, not in a position to file necessary applications in time. The Committee came to know about the appeal only when it received a communication dated 7.9.2003 from the lawyer about the case. Thereafter it ascertained the particulars of the LRs. of the deceased and filed the applications on 9.10.2003.

4. The question that therefore arises for our consideration is whether the High Court ought to have condoned the delay and set aside the abatement. To consider this question, it is necessary to refer to the relevant provisions of order 22 CPC and their scope.

4.1. Order 22 Rule 11 CPC provides that in the application of Order 22 to appeals, as far as may be the words `plaintiff, `defendant and `suit shall respectively include an appellant, a respondent and an appeal. Rule 1 of Order 22 provides that the death of a respondent shall not cause the appeal to abate if the right to sue survives.

4.2. Rule 4 of Order 22 prescribes the procedure in case of death of a respondent. Sub-Rule (1) of Rule 4 provides that where a respondent dies and the right to sue does not survive against the surviving respondents alone or where the sole respondent dies and the right to sue survives, the court on an application made in that behalf, shall cause the legal representative of the deceased respondent to be made a party to the appeal and shall proceed with the appeal. Sub-rule (3) provides that where no application is made to cause the legal representative of the deceased respondent to be made party, the appeal shall abate as against the deceased respondent. (The word `abate in the context of Order 22 CPC means termination of the suit or appeal on account of the death of a party materially interested).

4.3. Under Article 120 of the Limitation Act, 1963, the period of limitation to have the legal representative of a deceased respondent made a party to an appeal under the Code of Civil Procedure, is 90 days from the date of death of the respondent. Article 121 provides that for an application under the Code of Civil Procedure for an ord