- If the right to sue survives then no abatement due to death of a party ( i.e. plaintiff, defendant, applicant, opponent, appellant, respondant etc) to proceeding.
- If within limitation (i.e. within 90 days ) no application is made by party ( i.e.plaintiff, appellant, applicant etc who filed proceeding ) for taking legal representative of deceased party on record then proceeding shall abate so far as the deceased party concerned.
- No specific order of abatement is required to be passed in any proceeding but proceeding automatically abate , if steps are not taken for taking legal representative on record within time.
- After abatement within 60 days application may be filed for set aside abatement.
- After above period ( i e.period for taking legal representative on record 90 days + period for set aside abatement 60 = 150 days ) delay will start.
- After 150 days party who filed proceeding may file 1) an application for taking legal representative on record along with 2) application for set aside abatement & 3) application for condonation of delay for set aside abatement.
- In Execution Proceeding ( i.e. Darakhast Application ) no time limit for for taking legal representative on record ( please peruse Rule 12 of Order 22 ) .
- The court may exempt party to proceeding from substituting the legal representative of any defendant who failed to file written statement or who failed to appear & content the suit at hearing. ( peruse Rule 4(4) of Order 22 )
- The court may determine legal representative of deceased party. If such question arises before an Appellate Court then appellate court may direct subordinate court to try , determine question & return the records together with evidence if any recorded at such trial , its finding & reason.
- Finding in above enquiry of legal representative can not operate as res judicata.
- No abatement by reason of death of party between the conclusion of hearing & the pronouncing of the judgement.
- Pleader of party to proceeding shall inform the Court about death of party if he comes to know.
- In case of an assignment, creation or devolution of any interest during the pendency of proceeding , the proceeding may by leave of the court be continued by or against the person to or upon whom such internet has come or devolved.( i.e. transfer of interest by way sale, gift, will , assignment etc.)
.... Relevant provision...
- Order 22 of C.P.C.
- S. 2(11) of C.P.C.
- S.141 of C.P.C.-Miscellaneous proceedings.
- S. 5 of The Limitation Act 1963.
- Article 120 & 121 of The Limitations Act 1963.
...... Important problem arising in civil practice........
- Party to proceeding [ i.e. Defendant or Opponent ] expired prior to the filing of the proceeding) .
…......No bar to file application under Order 1 Rule 10 & S.151 of C.P.C. for adding legal heir of deceased party in proceeding
...... Relevant Judgement---
Pankajbhai Rameshbhai Zalavadiya v/s Jethabhai Kalabhai Zalavadiya 2018 SAR (civil) 1
......... Please Comment & give Suggestions.....................
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