MANOJ RAMANI Vs. BHARIO RAM

JUDGEMENT

(1.) Learned counsel for the petitioners submits that this civil miscellaneous petition has been filed for restoration of S.A. No.89 of 2018, which was dismissed for non-compliance of peremptory order. He further submits that during the pendency of the second appeal, the appellant in second appeal has already died and, therefore, he has filed this civil miscellaneous petition for restoration.

(2.) The second appeal has already been abated and there is no prayer for setting aside the abatement.

(3.) Order XXII Rule 11 of the Code of Civil Procedure read with Order XXII Rule 4 makes it obligatory to seek substitution of the heirs and legal representatives of deceased defendant/appellant if the right to sue survives. Such substitution has to be sought within the time prescribed by law of limitation. If no such substitution is sought the appeal will abate. Sub-rule (2) of Rule 9 of Order XXII enables the party who is under an obligation to seek substitution to apply for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit which would include an appeal, the court shall set aside the abatement. Now where an application for setting aside an abatement is made, but the court having not been satisfied that the party seeking setting aside of abatement was prevented by sufficient cause from continuing the appeal, the court may decline to set aside the abatement. Then the net result would be that the appeal would stand disposed of as having abated. It may be mentioned that no specific order for abatement of a proceeding under one or the other provision of Order XXII is envisaged; the abatement takes place on its own force by passage of time. In fact, a specific order is necessary under Order XXII Rule 9 of the Code of Civil Procedure for setting aside the abatement.