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.

JUDGMENT

ANIL KSHETARPAL, J.

1. By the present judgment, this Court proceeds to consider and dispose of the applications preferred by the legal representatives of the deceased Appellant under Order XXII Rules 3, 9 and 11 of the Code of Civil Procedure, 1908 [hereinafter referred to as „CPC‟], seeking recall of the order dated 24.04.2009, whereby the present appeal was declared to have abated. This Bench shall further dispose of the applications filed by the wife of the Appellant seeking substitution of the legal representative of deceased Respondent No.2. A tabular representation of the applications and the respective prayers sought therein is presented below for clarity:

S. No. Application Prayer sought Nos.

1. 10794/2019 Seeking setting aside of the abatement order dated 24.04.2009 and to take on record the application filed under Order XXII Rules 3 and 11 of the CPC.

2. 10795/2019 Seeking condonation of delay of 3191 days in filing the CM App. No. 10794/2019.

3. 10980/2019 Seeking the impleadment of LRs of deceased Appellant to the present Appeal.

4. 10981/2019 Seeking condonation of delay of 3215 days in re-filing the CM App. No. 10980/2019.

5. 56544/2025 Seeking impleadment of the LR of Respondent No. 2 to the present Appeal.

6. 56545/2025 Seeking condonation of delay of 763 days in filing the CM App. No. 56544/2025.

7. 56546/2025 Seeking condonation of delay of 81 days in re-filing the CM App. No. 56544/2025.

FACTUAL BACKGROUND:

2. In order to examine the issues involved in the present proceedings, it is imperative to cull out the relevant facts in brief, which are set forth hereinafter. At the outset, this Court deems it appropriate to note that the present proceedings find its genesis in a family dispute relating to the partition of several properties, in respect of which an ex-parte preliminary decree came to be passed on 10.02.1997. The said decree subsequently came to be challenged by Sh. Surender Singh, the Appellant herein, by way of the present Appeal. Before delving into the aforesaid controversy, the family tree of the parties is provided hereinbelow-

3. Upon the demise of Late Sh. Suraj Singh, his widow, Smt. Nepali Devi (Original Plaintiff/Respondent No.1) instituted a civil suit seeking partition and rendition of accounts against their children, namely Sh. Surender Singh (Defendant No.1/Appellant), Smt. Dayawati (Defendant No.2/Respondent No.2), Smt. Sushil Bala (Defendant No.3/Respondent No.7), Smt. Maya Devi (Defendant No.4/Respondent No.4), Smt. Surendri Devi (Defendant No.5/Respondent No.5), Smt. Vijay Kumari (Defendant No.6/Respondent No.6) and their nephew, Sh. Vikram Singh (Defendant No.7/Respondent No.8), with respect to properties bearing no. 5302, 5306 and 5308 situated in Village Seelampur, Delhi; half share in property bearing no. 5304 and an extent of 195 sq yds forming part of Khasra nos. 297 and 299, both situated in the same village [hereinafter referred to as „suit properties‟]. In substance, it was the case of Respondent No.1 before the Trial Court that the suit properties constituted joint/family properties, and as such she sought partition by metes and bounds, a declaration of half share in property bearing No. 5304, and rendition of accounts in respect of the income derived therefrom.

4. The Trial Court, on account of failure of the Appellant to enter appearance in the civil suit, proceeded ex-parte against him vide order dated 12.03.1991. Thereafter, the Court vide its judgment dated 11.02.1997, passed a preliminary decree for partition [hereinafter referred to as „preliminary decree‟], declaring