Holding

The appeal abated upon the respondent's death and the belated application to set aside the abatement was time‑barred and not condoned, leading to dismissal of the appeal.

Summary

The Supreme Court considered a civil appeal filed by the State of Gujarat against S.M. Baquir, wherein the sole respondent died on 10 December 1978. The Court held that the right to sue survived in the deceased's legal representatives, but under Order XLXI of the CPC and Article 121 of the Limitation Act, an application to bring those representatives on record had to be filed within 90 days of death, and an application to set aside the resulting abatement within 60 days thereafter. No such application was made within the prescribed period; the appeal therefore abated on 11 March 1979. An application filed on 29 August 1979, and an affidavit filed on 4 March 1980, were more than three and a half months late. The Court found no sufficient cause to condone the delay and held that the appellant’s counsel’s negligence could be attributed to the State. Consequently, the abatement was not set aside and the appeal was dismissed.

Issues considered

The death of the sole respondent causes abatement of the appeal under Order XLXI of the CPC.
Whether the right to sue survives in the legal representatives of the deceased respondent.
Whether an application to set aside the abatement filed after the statutory period can be condoned.

Legislation cited

Code of Civil Procedure, 1908s. Order XLXI
Limitation Act, 1963s. Article 121

Subjects

abatementdeath of partyright to suelegal representativesLimitation ActCivil Procedure Codecondonation of delaycivil appeal

Judgment

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551
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A
STATE OF GUJARAT
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v.
SAYED· MOHD. BAQUIR EL EI) ROSS

' September I, 1981

[A.O. KOSHAL, V: BALAKRISHNA ERADl AND
R.B. MISRA, Jl)

Civil Procedure· C-ode, Order XLYTI r'ead wfrh Articie 121 of the Limitation c
Act, 1963----Sun·iva/ ·a/ right, to sue-----Lega/ repr~sentatives of deceased respondent
not brought r;n record by appellant-S.tate within prescribed time limit-Appeal
abates.

Dismissing the' appeal by special leave, the Court
D
• HELD: The abatement siands in the way of the appeal being heard on
merits. In the instant case, (a) on the death of the sole respondent to the appeal
the right to sue S'Urvived to his legal representatives; (b) no application having
been made within 90 days of the death, the appeal abated on the 1Ith of March,
1979 and an application for .having the abatement set aside could have .been made
w.ith)n the period of 60 d~ys following that date, under Article 121 of the Limita-
tio~ Act~ and (c) the appliCation actually made to set asid.e the abatement ·was
tinie barred by more .than three months and a- half. The clerk or the learried
counsel for the appellant was Served with a copy of the application dated 23rd 1

F~bruary, 1979 . -·on. that . d~te itself and no reason, good, bad or indifferent"is
assigned fo_r.the fai.lure of that counsel right from the 20.th February, 1979 to the
29th August, 1979 eit_her .for having the legal representatives of the deceased
bfought on the record or fC)"'i having the abatement set aside after it had taken
plate. His kn.owledge of the dea'th of the resp·ondent must be attfibtited to
the appellant State.also and his negligence in not moving the Court in time must
F
be deemed .to be that of the appellant. [652 E·H, 653 A, BJ

CIVIL APPELI:ATE JURISDICTION: Civil Appeal NJ. 353 of
1969.

From the judgment and decree dated the 19th/20th July, 1965
of the High Court of Gujarat at Ahmedabad in First Appeal No.
584 of 1960.

M. N. Phodke, S. C. Patel and R. N. Poddar for the
H
appellant:
552 SUPREME COURT REPORTS (1982] I S.C.R.

A D.V. Pote/, R.A. Shroff; Gopol Subramaniam and D.P. Mohanty
for the respondent.

The Order of the Court was delivered by

KOSHAL, J. The sole respondent in this appeal died on the
8 10th December, 1978. He was also arraigned as an appellant in
the connected appeal (Civil Appeal No. 2132 of 1977) in which an
application was made on the 20th February I 979 stating the factum
and the date of the demise. A copy of that application was delivered
on the date last mentioned to the clerk of learned counsel for the
appellant State, who, however, took no step to move the Court
c for having the legal representatives of the deceased respondent
brought on the record in the present appeal till the 29th August,
1979 when an application was made for that purpose, but without
being accompained by any affidavit containing averments as to why
the inordinate delay in filing the application should be condoned.
An affidavit of the type just mentioned was filed in Court on 4th
D March, 1980. •
It is common ground between the parties that on the death of
the sole respondent to the appeal the right to sue survived to his
legal representatives. No application having been made within
90 days of the death, the appeal abated on the I Ith March. 1979
E and an application for having the abatement set aside could have
been made within the period of 60 days following that date. (Arti·
cle 121 of the Limitation Act). The application actually made in
that behalf was thus time-barred by more than 3 months and a half.
:bfr. Phadke, learned counsel for the appellant does not dispute this
proposition. He urges, however, that the delay in making the
appfication last mentioned should be condoned and the abatement
of the appeal set aside. No sufficient cause, however, for the
condonation of the delay is made out from any material on the
record. As pointed out earlier, the clerk of the learned counsel
for the appellant was served with a copy of the application dated
23rd February, 1979 on that date itself and no reason, good, bad
G or indifferent is assigned for the failure of that counsel right from
the 20th February, 1979 to the 29th August, 1979 to move the
Court till the 29th August, 1979 either for having the legal repre-
sentatives of the deceased brought on the record or for having the
abatement set aside after it had taken place. His knowledge of the
H death of the respondent must be attributed to the appellant State
GUJARAT v. s.M. BAQUIR (Koshal, J.) 553

also and his negligence in not moving the Court in time must be A
deemed to be that of the appellant.

Mr. Phadke also contended that he had a strong case for the
acceptance of the appeal on merits and that the same should be

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regarded as a very good reason for the condonation of the delay•
The contention is wholly without substance. The abatement stands
in the way of the appeal being heard on merits which cannot,
therefore, be looke!l into.

No grounds for the condonation of the delay having been
made out we refuse to set aside the abatement. . The appeal is
accordingly dismissed. C

S.R . Appeal dismissed.

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