HARI PRASAD BHUYAN versus DURGA PRASAD BHUYAN AND ORS.

Citation: [2008] 2 S.C.R. 160 · Decided: 29-01-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed

Judgment (excerpt)

[2008] 2 S.C.R. 160 
+-
A 
HARi PRASAD BHUYAN 
\- t 
v. 
DURGA PRASAD BHUYAN AND ORS. 
(Civil Appeal No. 768 of 2008) 
B 
JANUARY 29, _2008 
. [DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.] 
"-1' 
Limitation Act, 1963 - Schedule Article 121 - Substitution 
~ 
oflegal heirs by setting aside abatement - Delay in seeking -
c Court below not condoning the delay- On appeal, held: Delay 
I 
"' 
• was liable to be condoned:... Limitation would be counted from 
' 
the date of knowledge of the death - Jn the facts of the case 
~ 
substitution by setting aside abatement was within limitation 
- period- Code of Civil Procedure, 1908- 0. XX/Ir. 9. 
D 
. A suit filed by predecessor-in-interest of the appellant 
_ was _decreed by High Court in appeal. The execution court 
. while drawing up the decree, by mistake did not set out 
. the reliefs- in ttie suit which were decreed. Trial court 
_;., 
). 
ordered that decree should have contained all the reliefs 
E claimed. Thereafter decree was drawn up accordingly. 
One· of the respondent-defendants, when reached this 
court questioning the order of trial court and the decree 
) 
drawn up according to the direction, the Court granted 
liberty to the appellant to approach the High Court u/s 152 
F CPC for making appropriate corrections in the decree. 
Accordingly application u/s 152 was filed. Thereafter, on 
l· 
26.6.2003 the appellant come to know about the death of 
respondent Nos. 13 and 24 from the report of the process 
server. On 2.8.2003 appellant filed application for setting 
.G aside the abatement, substitution and for condonation of 
delay is filing the application. High Court while dealing 
with the application u/s 152 declared the decree to be a 
nullity on account of death of respondent Nos. 13 and 24 
and on account of the delay. Hence the present appeal. 
H 
160 
-+ 
HARi PRASAD BHUYAN v. DURGA PRASAD BHUYAN 
161 
AND ORS. '[PASAYAT, J.] 
Allowing the appeal, the Court 
A 
HELD: The appellant came to know about the death 
of respondents 13 and 24 from the process server's 
report. Before this Court earlier also respondents did not 
disclose about their death. Since that has not been done, B 
respondents cannot take any advantage from the belated 
approach by the appellant. This is a clear case where the 
y. 
prayer for condonation of delay in seeking substitution 
~ 
by setting aside abatement and condonation of delay 
should have been accepted by the High Court. [Para S] 
(167-C, D] 
c 
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 768 
of 2008. 
From the final Judgment and Order dated 06.10.2005 of 
the Gauhati High Court in Misc. Case No. 58 of 2003 in Second D 
appeal No. 80 of 1986. 
--~ 
Rana Mukherjee, Azim H. Laskar,Anand, D. Bharat Kumar 
·~ 
and Abhijit Sengupta for the Appellant. 
The Judgment of the Court was delivered by 
E 
Dr. ARIJIT PASAYAT, J. 1. Leave granted. 
2. Challenge in this appeal is to the order passed by a 
learned Single Judge of the Gauhati High Court, dismissing the 
applications for condonation of delay, setting aside of abatement F 
,.;... 
and substitution of the heirs of the respondent nos. 13 and 24 in 
.. 
the Second Appeal no.80/1986. It was held that the appeal had 
abated and the judgment and order dated 18.5.1995 pas·sed 
by the High Court in Second Appeal no.80/1986 was a nullity 
and, therefore, application under Section 152 of the Code of G 
Civil Procedure, 1908 (in short the 'CPC') was not maintainable. 
3. Background facts in a nutshell are as follows: 
Predecessors-in-interest of the appellant filed suit TS 
no.26/1978 in the Court of Assistant District Judge No.1, H 
162 
SUPREME COURT REPORTS 
[2008] 2 S.C.R. +-
A Gauhati. The said suit, inter alia, was for recovery of possession, 
confirmation of possession and declaration of title over the suit 
properties and for cancellation of mutation of names of certain 
defendants. According to the appellant, the said suit specifically 
set out the cause of action against each defendant and the 
B prayers in the suit were also specifically directed against the ./" 
defendants in respect of the alleged holding in the scheduled 
properties. The Trial Court by judgment dated 11.1.1984 
dismissed the suit. An appeal was preferred which was 
numbered as Appeal no.5/1984 and the same was dismissed 
c by learned District Judge, Gauhati by order dated 30.1.1986. 
Plaintiffs filed a Second Appeal no.80 of 1986 in the Gauhati 
High Court. During pendency of the same, some of the plaintiffs 
died

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