Calcutta High Court (Appellete Side)
Namita Das & Ors vs Sri Uma Kanta Purkait & Ors on 8 August, 2025
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
2025:CHC-AS:1540
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.),
2nd 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.
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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
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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 during the pendency of suit or appeal.
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9. Order 22 Rule 10A of the Code of Civil Procedure states that
whenever a pleader appearing for a party to the suit comes to know of the
death of that party, he shall inform the Court about it, and the Court shall
thereupon give notice of such death to the other party, and, for this
purpose, the contract between the pleader and the deceased party shall be
deemed to subsist. Admittedly, such death intimation was made only on
March 8, 2019 when the respondent No.4 died on February 18, 2016.
10. Thus, such death intimation was given by the respondents in the
title appeal almost after three years of the factum of death of the
respondent No.4.
11. However, failure to perform the duty under Order 22 Rule 10A
promptly cannot have the effect of postponing the starting point of
limitation for substitution till the date on which court is informed of the
death. However, the fact that information of death was given at a particular
date is a relevant fact for the purpose of deciding whether the applicant was
prevented by “sufficient cause” as per Section 5 of the Limitation Act to
condone the delay in applying for bringing on record the heirs and legal
representatives of the deceased.
12. Mr. Ghosh would contend that since the appeal stood abated for
failure on the part of the appellants to have the heirs of the deceased
respondent no. 4 substituted in the appeal unless a prayer for setting aside
abatement along with condoning of delay is made, the heirs of the deceased
respondent could not have been allowed to be brought on record.
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13. In the case of Mithailal Dalsangar Singh and others vs.
Annabai Devram Kini and others reported at (2023) 10 SCC 691, the
appellants therein filed an application for bringing on record the legal
representatives of a deceased respondent in the appeal. An objection
against such impleadment was raised on the ground that the application
was hopelessly barred by time and it has abated. The Hon’ble Supreme
Court held that a simple prayer for bringing the legal representatives on
record without specifically praying for setting aside abatement can be
construed as a prayer for setting aside abatement. It was further held that
a prayer made for bringing the legal representatives on record, if allowed,
would have the effect of setting aside the abatement as the relief of setting
aside abatement though not asked for in so many words is in effect being
actually asked for and is necessarily implied.
14. It is now well-settled that even if there is no prayer for setting
aside abatement and for condonation of delay, if the reasons for the delay
in filing the application has been stated and the Court finds the same to
satisfactory, the heirs can be brought on record after setting aside
abatement upon condonation of delay even in the absence of any prayer
being made to such effect.
15. In the facts and circumstances of this case this Court is of the
considered view that the delay in filing the application for bringing on
record the heirs and legal representatives of the deceased respondent No.4
has been satisfactorily explained.
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16. This Court accordingly holds that the order impugned allowing
the legal representative of the deceased respondent no. 4 to be brought on
record had the effect of setting aside abatement though not expressly
prayed for.
17. After this order is dictated, Mr. Ghosh, learned advocate
appearing for the petitioner submits that August 14, 2025 is a date fixed in
the title appeal. He submits that the heirs of the deceased respondent No.4
shall enter appearance in the said appeal on or before the next date fixed in
the title appeal. In view of such assurance being given by Mr. Ghosh,
learned advocate for the petitioner, CO 2839 of 2025 stands disposed of by
requesting the learned Civil Judge (Sr. Div.), 2nd Court at Baruipur to make
an endeavour to dispose Title Appeal No.32 of 2017 as expeditiously as
possible after the same is made ready for hearing without granting any
unnecessary adjournments to either of the parties.
18. There will be no order as to costs.
19. Urgent photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(Hiranmay Bhattacharyya, J.)
Item No.21
Aritra Ghosh
A.R. (Court)