SUSHILA DEVI Vs. PARSHOTAM LAL

JUDGEMENT

(1.) SMT . Sushila Devi since deceased had filed this regular second appeal against judgment and decree dated January 18, 1983, of Shri S.R. Goel, Additional District Judge, by which he had dismissed the appeal against judgment and decree dated August 7, 1982, of Shri Y.S. Jonwal, Sub-Judge, Delhi, whereby he had dismissed the suit brought by the appellant for recovery of Rs. 2,550/-, as arrears of rent.

(2.) THE appellant has died on May 23, 1987, during the pendency of the present appeal. The two applications have been moved by her husband, namely, Vidya Sagar Vaid one under order 22 Rules 3, 9, 10 and 11 read with Section 151 of the Code of Civil Procedure and another under Section 5 of the Limitation Act seeking that he be brought on the record as sole heir of deceased appellant inasmuch as the deceased during her life time had executed a valid will in his favour bequeathing her properties to him alone to the exclusion of her one son and two daughters. It has been pleaded by the applicant that he was representing the appellant throughout the proceedings from the lower court to the High Court as General Attorney of the appellant and he was under the impression that no application was required to be moved for substitution after death of the appellant inasmuch as he was already acting as General Attorney of the deceased during her lifetime and due to bonafide mistake he did not instruct his counsel to move any such application within the limitation and thus, the delay made in moving the application be condoned.

(3.) UNDER Article 120 of the Limitation Act, an application for bringing on record the legal representatives of the appellant has to be moved within 90 days from the date of the death of the appellant. Admittedly, no such application was moved. So, in law the appeal stood abated on the expiry of the period of 90 days. I may mention that the present applications were moved by the appellant on October 20, 1987, although the applications show that these were duly prepared on October 15, 1987. The period of 90 days expired on August 21, 1987. Under Article 121 of the Limitation Act, an application under Order 21X Rule 9(2) of the Code of Civil Procedure could be moved for setting aside of abatement within 60 days of the date of abatement which period was to expire on October 20, 1987. It is true that the aforesaid applications have been moved within the period prescribed for setting aside of the abatement, but in order to obtain the order of setting aside of the abatement the applicant has to show sufficient cause. In the application the applicant has not disclosed as to on what date he apprised his counsel regarding the death of the appellant and on what date he was advised to move the application for being substituted as sole representative of the appellant. No explanation has been furnished as to why the applications, which were made ready on October 15, 1987, were not filed immediately thereafter and so, each day's delay has not been explained either in the applications or in the arguments advanced before me.