ORDER :

1. An application under Order XXII Rule 10A of the Code of Civil Procedure has been preferred on behalf of respondent No. 1 with an information that respondent No. 1-Laxmi Devi has expired on 20.08.2022. A copy of the said application had been served on learned counsel for the appellants on 29.11.2022.

2. Learned counsel for the respondent No. 1 submitted that despite the information of the death of respondent No. 1 having been given to learned counsel for the appellant way back in the month of November, 2022, till date no application for substitution of legal representatives of the said respondent has been preferred by the appellant and therefore, the appeal stands abated against respondent No. 1.

3. Learned counsel for the appellants submitted that as per Order XXII Rule 10A, CPC, on an information of death of any of the parties been given, the same has to be taken on record by the Court and then only the limitation for substitution of legal representatives of the said party would commence. He therefore, submitted that the appeal would not stand abated against the deceased respondent No. 1 and he be granted time to substitute the legal representatives of the said deceased respondent. Counsel further submitted that the prayer of the respondent in application under Order XXII Rule 10A, CPC also is only to take the information on record and therefore too, the limitation to substitute the legal representatives would commence from the date such information is taken on record. In support of his submission, he relied upon the judgment passed in the case of Mewar Kalal Nyati Sangh v. Jaivi and Ors.; AIR 1999 Rajasthan 148.

Order XXII Rule 4(1), CPC provides as under:

“(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.”

Order XXII Rule 4(3), CPC provides as under:

“(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.”

Order XXII Rule 10A, CPC provides as under:

“10A. Duty of pleader to communicate to Court death of a party - Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.”

4. Article 120 of the Limitation Act, 1963 provides for a limitation of 90 days for filing of an application for substitution of the legal representatives of a deceased plaintiff/defendant. The question as to when the limitation as provided under Article 120 of the Limitation Act would begin to run and what would be the effect of Order XXII Rule 10A, CPC for the purposes of limitation was under consideration by the Hon'ble Delhi High Court in the case of Deepak Verma v. Daya Nand; C.R.P. 183/2018 and CM APPL. 35871/2018 decided on 01.07.2019, wherein it was held as under

“16. Although the CPC does not expressly provide for the consequences of non-compliance with Order XXII Rule 10 A of the CPC, at the very least, it is a factor to be taken into account while deciding whether or not delay in filing an application for setting aside abatement is justified. The provision does not, however, automatically extend the period of limitation provided under Articles 120 and 121 of the Limitation Act, 1963.

17. The position which emerges fr