Appellant's inaction post notification of death leads to dismissal for abatement; courts prioritize rights over sympathetic considerations.

IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA th ON THE 24 OF JULY, 2025 SECOND APPEAL No. 340 of 2016 GOVIND SINGH MOGIYA Versus RAKESH KUMAR Appearance:

Shri Rohit Bansal, Advocate for appellant. Shri Rajiv Jain, Advocate for respondent.

ORDER I.A. No.408/2018 is an application under Order 22 Rule 10, CPC, thereby informing the death of respondent Rakesh Kumar. This application was filed on 22/01/2018. It is mentioned in the application that Rakesh Kumar has already expired on 22/08/2017.

2. Thereafter, I.A. No.3434/2018 was filed on 24/07/2018 under Order

22 Rules 4,11 of CPC for substitution of legal representatives of Rakesh Kumar.

3. I.A. No.3435/2018 has been filed under Order 22 Rule 9, CPC read with S.5 of the Limitation Act for condonation of delay in filing an application for setting aside abatement, as well as, for setting aside abatement. This application reads as under:-

"APPLICATION UNDER ORDER 22 RULE 9 C.P.C. AND SECTION 5 OF THE LIMITATION ACT May it please this Hon'ble Court The humble appellant most humbly and respectfully submits the Signature Not Verified Signed by: ANAND application as under :-

1. That, as has been informed by the counsel for respondent, in the aforesaid case during pendency of instant appeal, the respondent-Rakesh Kumar has died on 22.8.2017 leaving behind him the certain legal representatives regarding which application is being filed separately.

2. That, right to sue survives to the proposed legal representatives therefore they deserve to be substituted in place of respondent-Rakesh Kumar.

3. That, by moving the application dtd. 22.1.2018, the counsel for respondent has informed to the court about death of respondent-Rakesh Kumar. This application was firstly considered on 10.7.2018, thereupon this Hon'ble Court granted two weeks'

time to move the application.

4. That, thereafter upon intimation, the appellant contacted to the local counsel who from his record file of execution proceeding, gave details of legal representatives of respondent, which was further intimated to the counsel at Gwalior, on the basis of which application has been prepared.

5. That, in the aforesaid circumstances, the delay has occurred in filing of the application for substitution of legal heirs, which being based on bonafides of the appellant, abatement deserves to be set aside.

6. That, however from the application dtd. 22.1.2018 it is clear that the legal heirs of respondent have already been substituted before executing court, therefore, there is no abatement in the appeal.

It is, therefore, most humbly prayed that the application may kindly be allowed and by condoning the delay in moving the application for substitution of legal heirs, the abatement may kindly be set aside and the proposed legal representatives may kindly be substituted in place of deceased respondent-Rakesh Kumar in the interest of justice.

Place : Gwalior Sd/-

Date : 24/07/2018 (D.D.Bansal)

Advocate for Appellant"

4. From paragraph 3 of this application, it is clear that counsel for appellant had received the information about death of respondent Rakesh Kumar when he received I.A. No.408/2018 on 22/1/2018. Thereafter the case was listed for the first time on 10/7/2018 and, accordingly, this Court granted two weeks' time to move the application. Thereafter, the applicant contacted the local counsel, who from his record of execution proceedings, Signature Not Verified Signed by: ANAND gave details of legal representatives of respondent, which were intimated to counsel at Gwalior and on the basis of it, the application was prepared and has been filed.

5. In view of the specific stand taken by appellant in paragraphs 3 and

4 of the application, counsel for appellant was directed to address this Court as to whether period of limitation would start from the date of death of party or it would start from the date when the case is taken-up. It wa