1977 (8) TMI 181 - HC - Indian Laws

Summary

Issues:
1. Abatement of appeal due to death of a party.
2. Application for setting aside abatement.
3. Interpretation of application for substitution as application for setting aside abatement.
4. Consideration of delay in filing application for setting aside abatement.
5. Legal justification for treating application as under Section 5 of the Limitation Act.

Analysis:
1. The defendant filed a First Appeal in the High Court, but one of the respondents, Banwari Lal, passed away during the appeal process, leading to the issue of abatement of the appeal against the deceased party.

2. The defendant filed an application for substitution of Banwari Lal with his widow. However, the court initially dismissed the application as time-barred, leading to the abatement of the appeal against the deceased respondent.

3. The defendant argued that the application for substitution should be considered as an application for setting aside the abatement, relying on a previous court decision. The court below distinguished the previous decision, leading to the abatement of the entire appeal.

4. The defendant further contended that the application for substitution implied a prayer for setting aside the abatement. The court agreed that the previous decision should have been followed, and the application should be treated as one for setting aside the abatement.

5. The defendant also argued that a formal application under Section 5 of the Limitation Act was not necessary to condone the delay in setting aside the abatement. The court agreed, citing previous court decisions supporting this view, and allowed the revision, setting aside the order of the court below.

6. The High Court allowed the revision, stating that the application for substitution was made within a reasonable time, and the delay in setting aside the abatement did not need to be condoned. The case was remanded to the appropriate court for further consideration, with each party bearing their own costs.