RAMDAS SHIVRAM SATTUR versus RAMESHCHANDRA POPATLAL SHAH AND ORS.

Citation: [2007] 9 S.C.R. 101 · Decided: 20-08-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

RAMDAS SHIVRAM SA ITUR 
A 
v. 
RAMESHCHANDRA POPA TLAL SHAH AND ORS. 
AUGUST 20, 2007 
[DR. ARIJIT PASA YAT AND D.K. JAIN, JJ.] 
B 
Code of Civil Procedure, I 908: 
0. 41 r. 19-Abatement of suit/appeal-Dismissal of appeal in respect 
of respondent No.3 and 6 for want of prosecution-Restoration application- C 
Allowed by High Court in respect of respondent No. 6 and not in respect of 
respondent No. 3 -Held: Respondent Nos. 5 to 7 were legal heirs of respondent 
No. 3 and parties in suit/appeal-Hence, High Court was not justified in 
refusing application for restoration of respondent No.3-But she is dead and 
her LRs are already on record-Appeal shall not abate so far respondent D 
No.3 is concerned as abatement occurs automatically on the expiry of 90 
days-Courts to adopt justice oriented approach and be liberal and not too 
technical. 
The suit plot was owned by father of the appellant and respondent No. 3. 
Name of respondent no. 3 was shown as nominee in the records of cooperative E 
Society. The suit plot was transferred in the name of respondent No.~ on 
death of father. She entered into an agreement to sell the suit plot with 
respondent Nos.I and 2 (original plaintiffs 1 and 2), however she did not 
execute the sale deed. The plaintiffs filed suit against respondent no. 3, her 
three sons, one daughter and Cooperative Society. Trial Court decreed the 
suit and directed execution of sale deed. First Appellate Court confirmed the F 
decree. Aggrieved appellant filed the second appeal. The said appeal was 
admitted by the High Court on 20.6.1986 and stay on the lower Court's decree 
was granted. The Additional Registrar dismissed the appeal in respect of 
respondent Nos. 3 and 6 for want of prosecution. 
Subsequently, there was change of advocate. When another advocate 
appeared, she found that record was not traceable and ultimately an application 
was filed before the High Court in respect of respondent Nos. 3 and 6 and 
restoration was prayed for in respect of the said respondents. 
101 
G 
H 
102 
SUPREME COURT REPORTS 
[2007) 9 S.C.R. 
A 
The High Court found that the application was to be allowed in respect 
of respondent No.6 but no case was made for restoration in respect of 
respondent No.3. Accordingly the application was partly allowed. 
In appeal to this Court, appellant contended that the High Court's 
approach is clearly erroneous. The position was the same for both respondent 
B Nos. 3 and 6. It was pointed out that mistake committed by the previous advocate 
was noticed in respect of respondent Nos. 5 and 7. It was noted that there was 
no dispute that respondent Nos.5, 6 and 7 along with present appellant are 
the only legal heirs of respondent no.3 who passed away during the pendency 
of the appeal, therefore, dismissal order in respect of respondent Nos. 5 and 
C 7 was set aside. 
Allowing the appeal, the Court 
HELD: 1. The consequence of deletion of names of deceased defendants/ 
respondents is that the decree of the courts below as against the deceased 
D becomes final. If the decree is inseparable and the rights of the parties are 
indivisible between the contesting parties and the deceased, the consequence 
would be that the suit/appeal stands abated as a whole. But if one of the 
respondents or defendants is already on record, what needs to be done is an 
intimation to the court by filing a formal application or memo to transpose 
the existing defendant(s) or respondent(s) as legal representatives of the 
E deceased defendant(s) or respondent(s). In view of the mistake committed by 
the counsel, the court has to consider the effect thereof. 
!Para 111 (106-B-DI 
Ram Sakal Singh v. Mosamat Monako Devi (Dead) and Ors., 1199715 
SCC 192 and Mithailal Dalsangar Singh and Ors. v. Annabi Devram Kini 
F and Ors., 12003110 sec 691, relied on. 
2. Once the suit has abated as a matter of law, though there may not 
have been passed on record a specific order dismissing the suit as abated, yet 
the legal representatives proposing to be brought on record or any other 
G applicant proposing to bring the legal representatives of the deceased party 
on record would seek the setting aside of an abatement A prayer for bringing 
the legal representatives on record, if allowed, would have the effect of setting 
aside the abatement as the relief of setting aside abatement though not asked 
for in so many words is in effect being actually asked for and is necessarily 
implied. Too technical or pedantic an app

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