LAL KESHRI DEVI Vs. DULESHWARI DEVI

JUDGEMENT

(1.) ORDER XXII Rule 3 sub -rule (1) of the Code of Civil Procedure provides, amongst others, that where sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause legal representative of the deceased -plaintiff to be made a party and shall proceed with the suit. Sub -rule (2) of Rule 3 of Order XXII of the Code provides that where within the time limited by law no application is made under sub -rule (1), the suit shall abate so far as the deceased -plaintiff is concerned. Article 120 of the Schedule to the Limitation Act prescribes the time limit of 90 days to have legal epresentative of a deceased -plaintiff made a party. Therefore, if an application is not made within 90 days to make the legal representative of the deceased -plaintiff a party, the suit abates.

(2.) RULE 11 of Order XXlI of the Code provides that the provisions contained in the said Order shall apply to appeals and the word "plaintiff" shall be held to include an appellant. In the circumstances, if within 90 days an application is not made to make the legal representative of a deceased -appellant a party to the appeal, the appeal abates.

(3.) IN the instant case admittedly the application for setting aside abatement was made on the 108th day of the death of one of the appellants. There was, therefore, no necessity of making a separate application for condonation of delay in making the application for substitution, inasmuch as by the directions contained in sub -rule (3) of Rule 9 of Order XXII of the Code an application for setting aside abatement is an application for condonation of the delay in making an application for substitution.