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Abatement and Limitation Periods - The period to file an application to set aside abatement is generally 60 days from the date of abatement under Article 121 of the Limitation Act. For bringing legal heirs on record after a party's death, the initial period is 90 days (Article 120), with an additional 60 days to set aside abatement. The total window for filing such applications is often considered 150 days (90+60), but extensions may apply in exceptional circumstances, such as during the COVID-19 pandemic (e.g., extension of limitation periods by the Supreme Court) ["2025 0 Supreme(AP) 41"], ["2025 0 Supreme(Bom) 1078"], ["2025 0 Supreme(Del) 714"], ["2024 0 Supreme(Cal) 839"].
Automatic Abatement and Application for Setting Aside - Abatement occurs automatically if no application is filed within the prescribed limitation period. However, courts recognize that applications for setting aside abatement can be filed within 60 days of the abatement order, and such applications are to be considered liberally, especially when sufficient cause is shown for delay (e.g., illness, pandemic disruptions). No separate application is strictly required under certain provisions like Order XXII Rule 4 of CPC, but procedural compliance is emphasized ["2025 0 Supreme(Bom) 1078"], ["2024 0 Supreme(MP) 620"].
Extensions and Exceptional Circumstances - The limitation period can be extended based on judicial discretion, especially under Section 5 of the Limitation Act, which allows condonation of delays if sufficient cause is demonstrated. The Supreme Court's extension of limitation periods during COVID-19 (e.g., till 28.02.2022) has been applied in relevant cases, broadening the scope for filing applications beyond usual timeframes ["2025 0 Supreme(Del) 714"], ["2023 0 Supreme(Bom) 1885"].
Principles Governing Abatement Applications - Courts tend to favor setting aside abatement and deciding cases on merits rather than dismissing on procedural grounds. While the law of limitation is strict and based on public policy (interest reipublicae ut sit finis litium), liberal interpretation of sufficient cause and condonation of delays are common to ensure substantive justice ["2024 0 Supreme(MP) 620"], ["2022 0 Supreme(Telangana) 610"].
Legal Policy and Public Welfare - The rules of limitation aim to serve public interest by preventing indefinite litigation, but they are not meant to destroy rights. Courts balance procedural strictness with equitable considerations, often considering the reasons for delay and the overall interests of justice ["2025 0 Supreme(AP) 41"], ["2023 0 Supreme(Cal) 1590"].
Analysis and Conclusion:The abatement of suits due to non-filing of applications within prescribed limitation periods is generally automatic. However, courts recognize the importance of equitable principles, allowing applications to set aside abatement beyond strict time limits if sufficient cause is shown. The law emphasizes liberal interpretation of delays and condonation under Section 5 of the Limitation Act, especially in exceptional circumstances like the COVID-19 pandemic. Ultimately, the primary aim is to balance procedural rules with substantive justice, ensuring that rights are not unduly defeated due to procedural lapses all sources.
In the fast-paced world of litigation, missing deadlines can spell disaster for a case. One common pitfall is abatement, the automatic termination of a suit or appeal due to a party's death if legal representatives (LRs) aren't substituted timely. A frequent question arises: What is the Difference Between Article 123 of Limitation Act and Section 5 of Limitation Act? While Article 123 relates to specific timelines (often contextualized with nearby Articles 120 and 121 for substitution and abatement), Section 5 offers a lifeline through condonation of delay. This post breaks it down, drawing from key judicial precedents and statutory provisions.
Abatement occurs under Order XXII of the Code of Civil Procedure, 1908 (CPC) when a party dies, and LRs are not brought on record within prescribed limits. The Limitation Act, 1963 sets strict timelines:
Article 123, in the broader appeal context, underscores fixed periods, but courts often reference Articles 120/121 for abatement scenarios. These are mandatory periods—no automatic extension without further action. As one judgment notes, Abatement takes place automatically after expiry of the period of limitation 2014 0 Supreme(Pat) 305.
In contrast, Section 5 of the Limitation Act allows courts to condone delays for sufficient cause, applying to applications beyond these periods, such as setting aside abatement after 150 days from death 2021 0 Supreme(Ker) 371 2009 0 Supreme(SC) 1292.
| Aspect | Article 123 (with 120/121) | Section 5 ||--------|----------------------------|-----------|| Nature | Fixed limitation periods (e.g., 90/60 days) | Discretionary condonation for delay || Application | Substitution (Art 120), set aside abatement (Art 121) | Any delay in appeals, suits, applications if sufficient cause shown || Trigger | From date of death/abatement | Beyond prescribed period || Outcome if Missed | Automatic abatement, suit fails | Possible extension if court satisfied |
Under Order XXII Rule 3(1), courts bring LRs on record upon application; Rule 4(3) mandates abatement if delayed 1976 0 Supreme(SC) 321. But Order XXII Rule 9 permits setting aside abatement for sufficient cause, where Section 5 principles apply 2010 0 Supreme(SC) 557 1976 0 Supreme(SC) 321.
The provisions of Order 22 Rule 9(3) of CPC clearly state that the provisions of Section 5 of the Limitation Act shall apply to the application under Order 22 Rule 9(2) of CPC 2023 0 Supreme(Chh) 541. This highlights Section 5's role as a remedial tool.
Courts liberally interpret Section 5 for abatement matters, emphasizing procedural fairness. In a partition suit appeal, failure to substitute led to abatement, but the court stressed, The provisions of Order 22 of CPC are procedural and should not curtail the substantial rights of the parties 2023 0 Supreme(Chh) 541.
In execution proceedings, no abatement under Order XXII Rule 12, so no limitation for impleading 2011 0 Supreme(Ker) 1003 2009 0 Supreme(Ker) 1067.
Rejections: If no condonation petition accompanies substitution after limitation, applications fail 2023 0 Supreme(Chh) 541. In absence of any such petition, by virtue of the provisions contained in Order XXII
Another case clarified: Art.120... stipulates a period of 90 days... As per Art.121... limitation of sixty days—delayed petitions barred without Section 5 1993 0 Supreme(Mad) 508.
Under Article 227 Constitution and CPC Section 151, courts set aside erroneous rejections where Section 5 petitions were overlooked, allowing substitution if knowledge of death was recent 2018 0 Supreme(Gau) 585.
Not all deaths trigger abatement:- If a party dies after hearing but before judgment, no abatement 2021 0 Supreme(Ker) 371.- LRs already on record: No issue 2009 0 Supreme(SC) 1292.- Non-contesting defendants: Exemption possible under Order XXII Rule 4(4), else abatement 2014 0 Supreme(Pat) 305.- Execution proceedings: No abatement per Rule 12 2011 0 Supreme(Ker) 1003.
Courts assess bona fides: Undisputedly, defendant 3-Motilal Singh had died on 9.2.2016 and the application... were filed on 10.2.2017—dismissed as barred, stressing timelines 2022 0 Supreme(MP) 314.
Article 123 (aligned with 120/121) enforces rigid deadlines to ensure expeditious justice, while Section 5 provides flexibility for genuine delays in abatement scenarios. Typically, strict adherence prevents complications, but Section 5 offers rescue when justified. Always consult a legal expert for case-specific advice—this is general information, not tailored counsel.
Key Takeaways:- 90 days to substitute; 60 days to set aside abatement.- Section 5 applicable per Order XXII Rule 9(3) 2023 0 Supreme(Chh) 541.- Procedural rules protect rights, not penalize 2023 0 Supreme(Chh) 541.- Act promptly to safeguard litigation.
Stay proactive in litigation timelines to avoid abatement traps.
#LimitationAct #AbatementCPC #IndianLaw
If, no such application is filed within 60 days from the date of abatement, the Limitation Act provides to file an application under Section 5 of the Limitation Act to set aside the abatement. 8. ... Under Article 121 of the Limitation Act, the period of limitation to set aside an abatement is sixty days from the date of abatement. Legal heirs of the d....
Once the court is satisfied that sufficient cause prevented the plaintiff/appellant from applying for setting aside the abatement within the period of limitation and orders accordingly, comes the question of setting the abatement. ... Thus, the total time-frame for filing an application for substitution and for setting aside abatement, as outlined in Articles 120 and 121 of the LIMITATION ACT , is 150 (90....
Gupta unfortunately passed away on 16.02.2021, however, keeping in view the extension of limitation by the Supreme Court in re Cognizance for Extension of Limitation, (2022) 3 SCC 117, whereby, the Supreme Court had held that where the limitation would have expired during the period between 15.03.2020 ... Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescr....
per Article 121 of the Limitation Act application for setting aside of abatement is to be filed within 60 days from the date of abatement. ... On the other hand, the prayer for setting abatement and the dismissal consequent upon an abatement, have to be considered liberally. ... ..........In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.20....
CPC for setting aside the abatement. ... 5 of Limitation Act were rejected. ... Rajbantin Bai was not supported with an application for setting aside abatement and an application for condonation of delay as the application under Order 22 Rule 4 of CPC was not moved within the prescribed limitation period. ... 5 of Limitation Act is not applicable. ... Abatement may be set aside on an app....
Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. ... Thereafter application for setting aside the abatement of appeal is to be filed within 90 days and if the said application is not filed then application under Order 22 Rule 9 CPC along with application for condon....
In other words, an application for setting aside the abatement has to be treated on a par and the principles enunciated for condonation of delay under Section 5 of the Limitation Act are to apply in pari materia. 24. ... as also abatement in the present case. ... Further assuming that there is a delay for setting aside the abatement and the Application is made for the first time in the year 2022, the benefit of the Covid P....
Undisputedly, defendant 3-Motilal Singh had died on 9.2.2016 and the application for substitution of legal representatives as well as application under Order 22 rule 9 CPC for setting aside abatement and for condonation of delay under section 5 of the Limitation Act were filed on 10.2.2017. ... He further submits that the learned Court below has wrongly dismissed the application as barred by limitation of one year, whereas it was barred by ....
The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. ... In the present context the court below while allowing the petitioner’s prayer for condonation of delay and for setting aside the order for abatement in respect of the Misc. .....
The Courts tend to set aside abatement and decided the matter on merits. The Courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. ... IA No. 9 of 2021 is filed seeking to set aside the abatement caused due to the death of appellant No. 2, who died on 05.09.2018. ... It is a settled legal proposition that law of limitation may hars....
To set aside abatement, the period of limitation under Article 121 of the Schedule of the Act is 60 days from the date of abatement. 8. Under Article 120 of the Schedule of the Limitation Act, the period of limitation to have the legal representatives of a deceased plaintiff or of an appellant or of a deceased defendant or of a respondent, is 90 days from the date of death of the plaintiff, appellant, defendant or respondent, as the case may be. If the application for substit....
In absence of any such petition, by virtue of the provisions contained in Order XXII Rule 4(3) of the Code of Civil Procedure, a Suit / Appeal abates as against the deceased defendants / respondents by operation of law. Abatement takes place automatically after expiry of the period of limitation.
In view of R.12 of O.XXII, there can be no abatement of the execution proceedings on the death of the petitioner or the respondent in the execution petition. If there is no abatement, there is no question of prescribing a period of limitation for impleading the legal representatives or setting aside abatement. In the result, in an Execution Petition, the legal representatives of the deceased petitioner would be entitled to come on record at any time, provided, it is within th....
If there is no abatement, there is no question of prescribing a period of limitation for impleading the legal representatives or setting aside abatement. For the same reason, there can be no question of delay in setting aside abatement also. In view of Rule 12 Order 22, there can be no abatement of the execution proceedings on the death of the petitioner or the respondent in the execution petition. In the result, in an Execution Petition, the legal representatives of the dece....
Art.120 of the Limitation Act stipulates a period of 90 days for an application under the Code of Civil Procedure, 1908, to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent made a parly and the time has to be computed from the date of death of the plaintiif, appellant, defendant or respondent, as the case may be. As per Art.121 for an application under the Code of Civil Procedure to set aside an abatement the limitation of si....
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