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SUPREME COURT OF INDIA
DIPANKAR DATTA, PRASHANT KUMAR MISHRA, JJ.
Om Prakash Gupta alias Lalloowa (Now Deceased) and Others – Appellants
Versus
Satish Chandra (Now Deceased) – Respondent
Civil Appeal No. 13407 of 2024
With
Om Prakash Gupta alias Lalloowa (Now Deceased) and Others – Appellants
Versus
Rooprani (Now Deceased) – Respondent
Civil Appeal No. 13408 of 2024
Decided On : 11-02-2025
(A) Civil Procedure Code, 1908 – Order XXII Rule 1 – Limitation Act, 1963 – Articles 120 and 121 – Substitution – Limitation – Suit/appeal automatically abates when application to substitute legal representatives of deceased party is not filed within prescribed limitation period of 90 days from date of death, as stipulated by Article 120 of Limitation Act, 1963 – Total time-frame for filing application for substitution and for setting aside abatement, as outlined in Articles 120 and 121 of Limitation Act, is 150 (90 + 60) days – Question of condonation of delay, through application under Section 5 of Limitation Act, arises only after this period and not on 91st day when suit/appeal abates – Proper sequence to be followed is an application for substitution within 90 days of death and if not filed, to file application for setting aside abatement within 60 days and if that too is not filed, to file requisite applications for substitution and setting aside abatement with accompanying application for condonation of delay in filing latter application, i.e., application for setting aside abatement. (Para 11)
(B) Civil Procedure Code, 1908 – Order XXII Rule 1 – Substitution – There seems to be no legal requirement that on death of a defendant, application for substitution in all cases has to be made by plaintiff only and that, any application, made by heirs/legal representatives of deceased defendant seeking an order to allow him/them step into shoes of deceased defendant and to contest the suit, cannot be considered – Once application has been made by either party and court has been informed about death of a party and who heirs/legal representatives he has left behind, only thing that remains for court is to pass an order substituting heirs/legal representatives – Law not having expressly mandated that application for substitution has to be filed by plaintiff/appellant upon receiving intimation of death, requiring formal application from plaintiff only will serve no tangible purpose – A justice-oriented approach has to be followed in interpreting provisions of CPC is well settled law. (Paras 16 and 19)
(C) Civil Procedure Code, 1908 – Order XXII Rule 1 – Substitution – When application praying for substitution had been made, then, even assuming that it does not have an explicit prayer for setting aside abatement, such prayer could be read as inherent in prayer for substitution in interest of justice – Prayer to bring on record heirs/legal representatives can also be construed as a prayer for setting aside abatement. (Para 23)
(D) Civil Procedure Code, 1908 – Order XXII Rule 10-A – Death of a party to suit – Intimation to Court – Rule 10-A casts a duty upon a Pleader appearing for a party to suit to intimate court about the death of such party – Nonetheless, this obligation may not arise in all circumstances – One notable exception could be when information regarding party's death is conveyed to court in presence of opposing party's pleader or is documented by court in order sheet – In such cases, if Pleader of concerned party (and consequently the party itself) has already been notified, issuing a further notice from court would not serve any substantial purpose other than being an exercise by way of abundant caution – In such scenario, absence of a notice from court would not imply a failure to comply with Rule 10A, suggesting that it is not always mandatory. (Para 29)
Facts of the case:
Issue arising for decision in C.A. No. 13407 of 2024 is, whether High Court was justified in dismissing application for condonation of delay in filing application for substitution and could second appeal be regarded as having abated. In C.A. No. 13407 of 2024, whether High Court was justified in passing impugned orders dismissing applications filed by appellants seeking substitution and condonation of delay is the issue.
Findings of Court:
Having regard to long lapse of time ever since second appeals were presented before High Court, that original parties are now dead and that the suits were for specific performance of contracts for sale, Roster Bench of High Court requested to consider the second appeals on priority and decide the same, subject to its convenience, preferably within 6 (six) months from date.
Result : Civil Appeals allowed.
Key Points: - The judgment lays down the proper sequence: substitution within 90 days of death, then setting aside abatement within 60 days, with condonation only after 150 days; total 150 days timeline (!) (!) (!) . - It holds that condonation of delay is considered for setting aside abatement, not for substitution within the initial 90 days, emphasizing liberal, justice-oriented approach (!) (!) (!) . - The court recognizes a justice-oriented interpretation allowing substitution deeds filed by heirs of one deceased party to count as substitution for the deceased party if a notice of death has been conveyed and the heirs are brought on record, and it rejects a rigid requirement that only the plaintiff can file substitution after death (Ram Charan principle) (!) (!) (!) . - Rule 10-A of Order XXII CPC imposes a duty on counsel to inform the court of a party’s death; failure to strictly follow does not necessarily invalidate substitution if information is sufficiently conveyed, and notice to the opposing party is essential for enabling substitution (!) (!) . - The Court sets aside abatement where there is non-diligence by the party but where there is sufficient cause and where the heirs of the deceased have moved for substitution and setting aside abatement, restoring the appeals on merits (!) (!) (!) . - The decision allows restoration and substitution even where an earlier abatement order existed, holding that the abatement can be set aside in the interest of justice if proper substitution applications are on record or read within substitution prayers (!) (!) (!) . - The judgments emphasize a liberal approach to setting aside abatement and restoring appeals to enable adjudication on merits, rather than foreclosure due to technicalities (!) (!) (!) . - The conclusions in Civil Appeal No. 13407 set aside abatement and allow substitution of Satish Chandra’s heirs; Civil Appeal No. 13408 similarly sets aside abatement and grants substitution for Rooprani’s heirs (!) (!) . - The Court recommends prioritizing these second appeals for adjudication in the High Court, given the long pendency and death of original parties (!) .
JUDGMENT :
DIPANKAR DATTA, J.
BRIEF RESUME OF FACTS
1. FACTS OF CIVIL APPEAL NO. 13407 OF 2024:
(b) Satish Chandra passed away on 2nd December 1996 during the pendency of the second appeal. On 2nd January, 1997, his heirs moved an application for substitution.8 [Civil Miscellaneous Substitution Application No. 211 of 1997] The High Court was informed of the death of Satish Chandra by the heirs and prayer was made for their substitution. Paragraph no. 1 of the application for substitution contained details as follows:
“That in the above noted second appeal, the sole respondent Satish Chandra son of Sri Ram died on 2.12.1996 leaving behind the following heirs and legal representatives:
1/1 Anil Kumar 1/2 Vimal Kumar 1/3 Manoj Kumar”
Prayer in the said application is as follows:
“It is prayed that the Hon’ble Court may be pleased to delete the name of the respondent no. 1 Sri Satish Chandra from array of the parties and on his place the following:
1/1 Anil Kumar 1/2 Vimal Kumar 1/3 Manoj Kumar
All sons of Late Sri Satish Chandra R/o Gandhi Tola, Nawabganj, Bareilly
Be substituted as his heirs and legal representatives”
(c) Om Prakash died on 8th December 2001.
(d) From the sequence of orders passed in the second appeal between 17th March, 2004 and 8th December, 2006, it is seen that multiple opportunities were given to counsel for Om Prakash to file an application for substitution. However, pendency of the application for substitution filed by the heirs of Satish Chandra escaped the notice of the High Court.
(e) Ultimately, the second appeal was ordered to have abated in the whole vide order dated 2nd January 2007 on the ground that no application for substitution was filed by Om Prakash or his heirs to bring on record the heirs/legal representatives of Satish Chandra.
(f) In the year 2017, the heirs of Satish Chandra initiated proceedings for execution of the decree.9 [E.A. No. 6 of 2017]
(g) Put on notice, the heirs of Om Prakash preferred an application for recall/restoration10 [Civil Miscellaneous Restoration Application No. 2 of 2018] seeking recall of the aforesaid order recording abatement of the second appeal. On the same day, they also filed an application for substitution11 [Civil Miscellaneous Substitution Application No. 5 of 2018] along with an application for condonation of delay.12 [Civil Miscellaneous Delay Condonation Application No. 4 of 2018]
(h) The restoration application was allowed by the High Court and the second appeal restored to its original file and number vide order dated 25th May, 2018.
(i) Seeking recall of the said order, heirs of Satish Chandra preferred an application for recall13 [Recall Application No. 7 of 2018] along with an application for condonation of delay.14 [I.A. No. 8 of 2018] These applications were allowed vide order dated 11th January 2019, with the result that the order restoring the second appeal to its original file upon setting aside of abatement stood recalled. Liberty was, however, reserved for the heirs of Om Prakash to file an application for setting aside abatement.
(j) While hearing the pending applications, referred to in paragraph g. (supra), the High Court did not find sufficient reasons for condoning the delay in filing the application for substitution. Resultantly, such application
(1) Substitution – Limitation – Suit/appeal automatically abates when application to substitute legal representatives of deceased party is not filed within prescribed limitation period of 90 days fro....
Courts adopt a liberal approach in allowing substitution after death of an appellant, emphasizing that ignorance of the appeal's pendency warrants consideration in condoning delay.
Courts should adopt a liberal approach to substitution and abatement to prioritize substantial justice over procedural technicalities.
Counsel must notify the court of a party's death and provide legal heirs' details; failure leads to abatement under Order 22 Rule 10A of CPC.
A substitution application for a deceased party can be allowed despite delays if sufficient cause is shown, and the absence of formal condonation is not fatal.
An appeal filed against a deceased sole defendant is a nullity; proper procedure requires withdrawal of the appeal with liberty to file a fresh one involving the legal heirs.
Abatement of an appeal under CPC is not automatic upon death if the right to sue survives; presence of a legal representative allows continuation despite procedural delays.
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