The Supreme Court has stated that the total time allowed for filing a substitution application and for setting aside abatement is 150 days under Order XXII of the CPC.
The Supreme Court ruled that the total period for submitting a substitution application and for overturning abatement is 150 days (90 + 60). The Court overturned the Allahabad High Court’s ruling that had dismissed the second appeal from the deceased plaintiff in a long-standing property case. The Bench explained that a request to overturn abatement can be included in a request for substitution. Justices Dipankar Datta and Prashant Kumar Mishra stated, “If the plaintiff/appellant learns of the death right after the suit/appeal has abated, they can file an application to set aside the abatement, which must be done within 60 days as per Article 121. Thus, an application to set aside the abatement must be filed between the 91st and 150th day after the death. After the 150th day, this option is no longer available.”
Senior Advocates Thomas P Joseph and Shekar Devesa represented the Appellants, while Senior Advocate Raghenth Basant represented the Respondent. The Appeals stemmed from two separate specific performance suits filed in the early 1970s. The plaintiffs won decrees from the first Appellate Court in 1977, which the defendant challenged in second Appeals. The High Court stayed execution but did not address the cases for many years. During this time, both the plaintiffs and the defendant passed away. Although the legal heirs of the plaintiff submitted a timely substitution application, the High Court ignored this and completely abated the appeal due to the absence of a separate application from the defendant’s heirs.
The Court clarified that Rule 1 of Order XXII of the CPC states that if a party in a lawsuit dies, the case will continue if the right to sue still exists. It noted that if the right to sue survives, the process for adding the legal representatives of the deceased parties is outlined in Rules 3 and 4 of Order XXII. If an application to substitute the deceased party’s legal representative is not submitted within 90 days of their death, as required by Article 120 of the Limitation Act, 1963, the case will automatically end. However, if the plaintiff/appellant is unaware of the defendant/respondent’s death within that 90-day period, does that mean the case will still end?
According to the Court, the answer is no. If the plaintiff/appellant learns of the death right after the case has ended, they can file an application to reverse the abatement, with a 60-day limit as per Article 121. The Court further explained that the total time allowed for both substitution and reversing the abatement is 150 days (90 + 60). Therefore, the correct order is to file for substitution within 90 days of death. If that is not done, the plaintiff/appellant should file to reverse the abatement within 60 days. If neither is filed, they can submit both applications along with a request to excuse the delay in filing the application to reverse the abatement, as emphasized by the Bench.
The Court referenced its ruling in Mithailal Dalsangar Singh v. Annabai Devram Kini (2003), which stated, “Courts should take a justice-focused approach, ensuring that a litigant is not denied the chance to have their case decided on its merits unless they have shown gross negligence, intentional inaction, or similar misconduct that disqualifies them from court consideration.” It concluded that the challenged orders, including the dismissal of the second appeal as abated, were legally flawed and should be overturned. As a result, the Court decided, “In granting Civil Appeal No. 13407 of 2024, we approve the substitution request from Satish Chandra’s heirs. We annul the order that dismissed the second appeal as abated and restore the appeal to its original status.” Thus, the Supreme Court approved the Appeal.
Cause Title: Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v. Satish Chandra (Now Deceased) [Neutral Citation: 2025 INSC 183]
Appearance:
Appellants: Senior Advocates Thomas P Joseph and Shekar Devesa; AOR A Velan; Advocates Navpreet Kaur, Rudraksh Gupta, Nilay Rai and Prince Singh
Respondent: Senior Advocate Raghenth Basant; AOR Abhigya Kushwah; Advocates Nishant Anand, Gunjan Bansal Anand, Anushasit Arya, Hima Bhardwaj, Shakib, Sandeep Sury and Sunita Singh
