IN THE HIGH COURT AT CALCUTTA

Civil Revisional Jurisdiction

Appellate Side

Present:

The Hon’ble Justice Hiranmay Bhattacharyya

C.O. 2839 of 2025 Namita Das & Ors.

Vs.

Sri Uma Kanta Purkait & Ors.

For the Petitioner : Mr. Mrinal Kanti Ghosh

Mr. Chandra Nath Sarkar

Mr. Sounak Mandal

Heard on : 08/08/2025 Judgment on : 08/08/2025

Hiranmay Bhattacharyya , J. :

1. This application under Article 227 of the Constitution of India is

at the instance of the heirs of the respondent No.4 and is directed against the order dated April 21, 2025 passed by the learned Civil Judge (Sr. Div.), 2^nd Court at Baruipur, District-South 24-Parganans in Title Appeal No.32 of

2017 arising out of Title Suit No.129 of 1981.

2. By the order impugned, the application for substitution of the

heirs of the deceased respondent No.4 was allowed.

3. Mr. Ghosh, learned advocate appearing for the petitioner submits that the respondent No.4 died on February 18, 2016 and the application for substitution was filed only on April 12, 2019. He further submits that since the application was not filed within the prescribed period of limitation the appeal stood abated as against the deceased respondent No.4 and without any prayer being made for setting aside the abatement upon condonation of delay, the learned judge of the First Appellate Court could not have allowed the heirs of the deceased respondent no. 4 to be substituted. Mr. Ghosh further submits that the death intimation was given by the learned advocate for the respondent Nos.5 to 7 to the learned advocate on record of the appellant on March 8, 2019.

4. Record reveals that the application for substitution was filed on April 12, 2019 that is immediately upon expiry of one month from the date of such death intimation being given.

5. In view of the provisions laid down under Order 22 Rule 9 read with Rule 11 of the Code of Civil Procedure the plaintiff or the appellant as the case may be may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit and the provisions of Section 5 of the Limitation Act shall also apply to such applications.

6. Article 120 of the Limitation Act governs the application under the Code of Civil Procedure to have the legal representatives of a deceased plaintiff or appellant or of a deceased defendant or respondent, made a party. The period of limitation for filing such application is 90 days and the time from which such period shall begin to run is the date of death of the deceased party. If no application for substitution is filed within a period of 90 days from the death of a party to suit or appeal, the suit or appeal abates automatically even without any order being recorded in that regard. The remedy open to the plaintiff or appellant in such an event is to apply for setting aside abatement and the period of limitation is 60 days from the date of abatement as per Article 121 of the Limitation Act. If, however, the application for setting aside abatement is made after (90+60) i.e., 150 days of the date of death, such application has to be accompanied by an application under Section 5 of the Limitation Act.

7. Mr. Ghosh would strenuously contend that in view of Article 120 of the Limitation Act, abatement is automatic upon expiry of 90 days from the date of death of a party to the suit or appeal and not from the date of knowledge of such death.

8. At this stage it would be relevant to take note of the provisions of order 22 Rule 10A of the Code of Civil Procedure which casts a duty upon the learned advocate appearing for the party who is dead to intimate the Court of the death of the party whom such advocate used to represent. The purpose behind such provision is to mitigate the hardship which a party to a suit or appeal may face on account of absence of knowledge about the fact of death of the other party