OM PRAKASH GUPTA ALIAS LALLOOWA (NOW DECEASED) & ORS. versus SATISH CHANDRA (NOW DECEASED)

Citation: [2025] 2 S.C.R. 937 · Decided: 11-02-2025 · Supreme Court of India · Bench: DIPANKAR DATTA · Disposal: Appeal(s) allowed

cites 3 · see the full citation network in Lexace

Judgment (excerpt)

[2025] 2 S.C.R. 937 : 2025 INSC 183
Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. 
v. 
Satish Chandra (Now Deceased)
(Civil Appeal No(s). 13407-13408 of 2024)
11 February 2025
[Dipankar Datta* and Prashant Kumar Mishra, JJ.]
Issue for Consideration
The issues before the Hon’ble Court were as to whether the High 
Court was justified in dismissing the application for condonation of 
delay in filing the application for substitution and could the second 
appeal be regarded as having abated; and as to what is the proper 
sequence in which the said applications are to be filed.
Headnotes†
Section 5 of Limitation Act, 1963 – Application for setting 
aside abatement and application for condonation of delay in 
filing the former application – Principles to be kept in mind by 
the Court as laid down in Perumon Bhagvathy Devaswom v. 
Bhargavi Amma (2008) 8 SCC 321. [Para 8]
Section 5 of Limitation Act, 1963 – Circumstances that are 
considered sufficient cause summarised in Perumon Bhagvathy 
Devaswom v. Bhargavi Amma (2008) 8 SCC 321. [Para 9]
Order XXII of Code of Civil Procedure, 1908 r/w Articles 120 
and 121 of Limitation Act, 1963 – Time frames laid out in the 
said provisions discussed – Proper sequence to be followed 
explained:
Held: Order XXII of Code of Civil Procedure, 1908 – Rule 1 states 
that when a party to a suit passes away, the suit will not abate if 
the right to sue survives – Rules 3 and 4 deal with the procedure 
for bringing on record the legal representative(s) of the plaintiff/
appellant and the defendant/respondent respectively when the 
right to sue survives – Limitation Act, 1963 – Article 120 states 
that the suit/appeal automatically abates when an application to 
substitute the legal representative(s) of the deceased party is not 
* Author
938
[2025] 2 S.C.R.
Supreme Court Reports
filed within the prescribed limitation period of 90 days from the 
date of death – Article 121 allows the appellant 60 days to file an 
application seeking setting aside of the abatement after the expiry 
of the aforesaid 90 days – After the expiry of the 150 days (90 + 60 
days) the application to set aside abatement should be accompanied 
with a petition to condone delay under Section 5 of Limitation 
Act – Plaintiff/ appellant to satisfy the Court that sufficient cause 
prevented him/her from applying for setting aside the abatement 
within the period of limitation. [Para 11]
Rule 4 of Order XXII of Code of Civil Procedure, 1908 – Who 
has to present application for substitution - Examined in light 
of judicial pronouncements:
Held: In Union of India v. Ram Charan AIR 1964 SC 215, it was 
held that Rule 4 of Order XXII does not say who has to present 
the application and that usually it is the plaintiff/appellant who does 
it as it is he who stands to lose if the suit/appeal is abated – In 
Civil Appeal 13407/2024 the Respondent/ Defendant’s LRs had 
moved an application for substitution when the sole defendant 
(predecessor-in-interest of the Respondents herein) died – A 
justice oriented approach has to be applied while interpreting 
the provisions of the Code of Civil Procedure, 1908 as held by 
this Hon’ble Court in Chinnammal v. P. Arumugham (1990) 
1 SCC 513 – Since the Court was thus informed of the death 
of the Respondent/Defendant and the heirs that he had left 
behind, the dismissal of second appeal as having abated cannot  
sustain. [Paras 14-16, 19]
Article 136 of Constitution of India – Power of Supreme Court 
to cure manifestly illegal order to avoid travesty of justice:
Held: This Court reiterated the ratio in A. Subash Babu v. State 
of A.P. (2011) 7 SCC 616 that under Art. 136 it has power to 
pass orders in favour of a party suo motu when it is satisfied 
that compelling grounds for it exist even when the order is not 
in challenged before it – It has the power to mould relief taking 
notice an obvious error of law committed by the High Court. 
[Para 21]
Whether prayer of setting aside abatement inherent in the 
prayer for substitution:
[2025] 2 S.C.R. 
939
Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v. 
Satish Chandra (Now Deceased)
Held: In Mithailal Dalsangar Singh v. Annabai Devram Kini 
(2003) 10 SCC 691 it was held that a simple prayer for bringing 
the legal representatives on record without specifically praying for 
setting aside of an abatement may in substance be construed as 
a prayer for setting aside the abatement – A prayer for bringing the 
legal representatives o

Excerpt shown. Read the full judgment & AI analysis in Lexace.