KRISHAN BAHADUR CHAND Vs. RAJENDRA DATT

JUDGEMENT

(1.) HEARD learned counsel for the par ties,

(2.) THE appeal (Second Appeal No. 169 of 1980 as registered in Allahabad High Court, which is renumbered as Sec ond Appeal No. 107 of 2001) was trans ferred to this Court under Section 35 of the U. P Re-organization Act, 2000. In said Section 35, which provides trans fer of proceedings from Allahabad High Court to Uttaranchal High Court, words used are 'proceedings pending in the High Court of Allahabad'. Since, the appeal stood abated on 21-02-1990, in fact, there was no appeal pending on 09-11-2000, in the matter and the dead proceedings could not have been trans ferred under Section 35 of the aforesaid Act.

(3.) IN view of Sub Rule (2) of Rule 31 of Order XXII of the Code of Civil Proce dure, 1980 read with its Rule 11 and also read with Article 120 of the Limitation Act, 1963, the appeal stood abated after 90 days of death of the sole appellant i. e. the appeal stood abated on 21-02-1990. The Apex Court in Madan Naik and oth ers Vs. Hansubala Devi and others, re ported in (1983) 3 Supreme Court Cases 15, has held that abatement of a proceed ing takes place on its own force by pas sage of time. No specific order for abate ment is envisaged under Order 22. It is only for setting aside of abatement that a specific order is necessary under Order 22 Rule 9 of the Code.