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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: SAYED MOHD. BAQUIR EL EDROSS

DATE OF JUDGMENT01/09/1981

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J)

CITATION:  1981 AIR 1921            1982 SCR  (1) 551  1981 SCC  (4)   1        1981 SCALE  (3)1793

ACT:      Civil Procedure  Code, order XXII read with Article 121 of the  Limitation Art,  1963-Survival of right to sue-Legal representatives of deceased respondent not brought on record by  appellant-State   within  prescribed  time  limit-Appeal abates.

HEADNOTE:      Dismissing the appeal by special leave, the Court ^      HELD: The  abatement stands  in the  way of  the appeal being heard on merits. In the instant case, (a) on the death of the  sole respondent  to the  appeal  the  right  to  sue survived to  his Legal  representatives; (b)  no application having been  made within  90 days  of the  death. the appeal abated on  the 11th  of March,  1979 and  an application for having the  abatement set  aside could have been made within the period of 60 days following that date, under Article 121 of the Limitation Act; and (c) the application actually made to set  aside the  abatement was  time barred  by more  than three months  and a  half. The  clerk of the learned counsel for the  appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right  from the  20th February,  1979  to  the  29th August, 1979  either for having the legal representatives of the deceased  brought  on  the  record  or  for  having  the abatement set  aside after it had taken place. His knowledge of the  death of  the respondent  must be  attributed to the appellant State  also and  his negligence  in not moving the Court in  time must  be deemed  to be that of the appellant. [652 E-H, 653 A, B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 353 of 1 969.      From the  judgment and decree dated the 19th/20th July, 1965 of  the High  Court of  Gujarat at  Ahmedabad in  First Appeal No. 584 of 1960.

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    M.N. phadke,  S. C.  Patel  and  R.N.  Poddar  for  the appellant. 552      D.V. Patel,  R.A. Shraff,  Gopal Subramaniam  and  D.P. Mohanty for the respondent.      The order of the Court was delivered by      KOSHAL, J.  The sole  respondent in this appeal died on the 10th  December,  1978.  He  was  also  arraigned  as  an appellant in  the connected appeal (Civil Appeal No. 2132 of 1977) in  which an application was made on the 20th February 1979 stating  the factum  and the date of the demise. A copy of that application was delivered on the date last mentioned to the  clerk of  learned counsel  for the  appellant State, who, however,  took no step to move the Court for having the legal representatives  of the deceased respondent brought on the record  in the present appeal till the 29th August, ]979 when an  application was  made for that purpose, but without being accompanied  by any  affidavit containing averments as to why the inordinate delay in filing the application should be condoned.  An affidavit  of the  type just  mentioned was filed in Court on 4th March, 198().      It is  common ground  between the  parties that  on the death of  the sole respondent to the appeal the right to sue survived to his legal representatives. No application having been made  within 90 days of the death, the appeal abated on the 11th  March. 1979  and an  application  for  having  the abatement set  aside could  have been made within the period of  60  days  following  that  date.  (Article  121  of  the Limitation Act).  The  application  actually  made  in  that behalf was  thus time-barred  by more  than 3  months and  a half. Mr. Phadke, learned counsel for the appellant does not dispute this  proposition. He urges. however, that the delay in making  the application last mentioned should be condoned and the  abatement of  the appeal  set aside.  No sufficient cause, however, for the condonation of the delay is made out from any material on the record. As pointed out earlier, the clerk of  the learned  counsel for  the appellant was served with a  copy of the application dated 23rd February, 1979 on that date  itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979  to the  29th August,  1979 to move the Court till the  29th August,  1979 either  for  having  the  legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place. His knowledge of  the death of the respondent must be attributed to the appellant State 553 also and his negligence in not moving the Court in time must be deemed to be that of the appellant.      Mr. Phadke also contended that he had a strong case for the acceptance  of the  appeal on  merits and  that the same should be regarded as a very good reason for the condonation of the  delay. The  contention is  wholly without substance. The abatement stands in the way of the appeal being heard on merits which cannot, therefore, be looked into.      No grounds for the condonation of the delay having been made out we refuse to set aside the abatement. The appeal is accordingly dismissed. S.R.                                        Appeal dismissed 554