Non-substitution of deceased parties does not lead to abatement of civil litigation if their interests are substantially represented, particularly in cases involving deities.

ORDER :

1. This matter is taken up through hybrid mode.

2. This application has been filed by the Opposite Party Nos. 1 (a) to 1(j) with a prayer to recall the order dated 14^th March, 2022 by which the writ petition was disposed of.

3. Mr. Pal, learned counsel for the Opposite Party Nos.1 (a) to 1(j) submits that during pendency of the writ petition, Petitioner Nos. 4(a), 4(b) and 5 to 9 died on different dates. But, no step for their substitution was taken by the surviving Petitioners although they knew about their death. In view of non-substitution of above named deceased Petitioners, the writ petition has abated. Had the death of above named Petitioners been brought to the notice of the Court, the final order would not have been passed before their substitution. It is his submission that even death of a single Petitioner would result in abatement of the writ petition as a whole. In view of such non-disclosure, the writ petition was disposed of with the following direction:

“10. In that view of the matter, the writ petition is disposed of with a direction that the impugned order dated 8^th October, 1998 (Annexur-4) passed by the Joint Commissioner, Consolidation, Cuttack in Consolidation Revision Case No.796 of 1996 shall be subject to the result of TS No.134 of 1996 pending before learned Civil Judge (Junior Division), Jajpur. Learned trial Court may take steps for expeditious disposal of T.S. No.134 of 1996, if there is no legal impediment.”

4. Mr. Pal, learned counsel relied upon the ratio decided by the Full Bench of Allahbad High Court in the case of Churya and others v. Baneshwar , AIR 1926 All 217 , in which it is held as under:

“If we turn now to Act No. IX of 1908, which was passed in the same year as the present Code of Civil Procedure, we find that article 171 is couched in different language. The article provides a period of sixty days for an application under the Code of Civil Procedure, 1908, for an order to set aside an abatement (not to set aside an order for abatement), and the period of sixty days begins to run not from the date of any order of abatement but from the date of the abatement.

I am satisfied, therefore, that the decision in I.L.R., 44 All., 459, is not a correct decision and ought to be overruled. In my opinion the correct law was laid down in the judgement above referred to, which is reported in I.L.R., 42 All., 540. The true interpretation of order XXII is that in order to work the abatement of a suit or appeal it is not necessary for the court to pass any order.”

5. He, therefore, submits that no specific order of abatement of the writ petition is required to be passed. On the death of above named Petitioners and due to their non-substitution within the statutory period, abatement of the writ petition has taken place automatically. He thus relied upon a decision in the case of Niranjan Dass v. Shiromani Gurudwara Prabandhak Committee, Amritsar , 1993 Supp (1) SCC 586, in which it is held as under:

“3. We see no force in the above contention of the learned counsel for the applicant. Article 120 of the Limitation Act, 1963 clearly provides a period of 90 days for having the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent to be made a party. In our view the language of Article 120 is clear and according to this the application in the present case ought to have been filed within 90 days of the death of sole appellant Niranjan Dass. The Punjab High Court in the above referred case took a wrong view that the provision of Article 120 is inapplicable and that the period of limitation would be three years and not 90 days. In the case before us Mahant Niranjan Dass was the sole appellant and he had died on