STATE OF GUJARAT versus SAYED MOHD. BAQUIR EL EDROSS

Citation: [1982] 1 S.C.R. 551 · Decided: 01-09-1981 · Supreme Court of India · Bench: A.D. KOSHAL · Disposal: Dismissed

Judgment (excerpt)

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STATE OF GUJARAT 
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v. 
SAYED· MOHD. BAQUIR EL EI) ROSS 
' September I, 1981 
[A.O. KOSHAL, V: BALAKRISHNA ERADl AND 
R.B. MISRA, Jl) 
551 
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Civil Procedure· C-ode, Order XLYTI r'ead wfrh Articie 121 of the Limitation 
Act, 1963----Sun·iva/ ·a/ right, to sue-----Lega/ repr~sentatives of deceased respondent 
not brought r;n record by appellant-S.tate within prescribed time limit-Appeal 
abates. 
Dismissing the' appeal by special leave, the Court 
HELD: The abatement siands 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 S'Urvived to his legal representatives; (b) no application having 
been made within 90 days of the death, the appeal abated on the 1 Ith of March, 
1979 and an application for .having the abatement set aside could have .been made 
w.ith)n the period of 60 d~ys following that date, under Article 121 of the Limita-
tio~ Act~ and (c) the appliCation actually made to set asid.e the abatement ·was 
tinie barred by more .than three months and a- half. The clerk or the learried 
counsel for the appellant was Served with a copy of the application dated 
123rd 
F~bruary, 1979 .. -·on. that .. d~te itself and no reason, good, bad or indifferent"is 
assigned fo_r.the fai.lure of that counsel right from the 20.th February, 1979 to the 
29th August, 1979 eit_her .for having the legal representatives of the deceased 
bfought on the record or fC)"'i having the abatement set aside after it had taken 
plate. His kn.owledge of the dea'th of the resp·ondent must be attfibtited 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, BJ 
CIVIL APPELI:ATE JURISDICTION: 
Civil Appeal NJ. 353 
of 
1969. 
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. 
M. N. Phodke, 
appellant: 
S. C. Patel 
and 
R. N. Poddar 
for the 
A 
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D 
F 
H 
552 
SUPREME COURT REPORTS 
(1982] I S.C.R. 
A 
D.V. Pote/, R.A. Shroff; Gopol Subramaniam and D.P. Mohanty 
8 
c 
D 
E 
G 
H 
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 I 979 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, 
1979 when an application was made for that purpose, but without 
being accompained 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, 1980. 
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 I Ith March. 1979 
and an application for having the abatement set aside could have 
been made within the period of 60 days following that date. (Arti· 
cle 121 of the Limitation Act). 
The application actually made in 
that behalf was thus time-barred by more than 3 months and a half. 
:bfr. Phadke, learned counsel for the appellant does not dispute this 
proposition. He urges, however, that the delay in making the 
appfication 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 repre-
sentatives of the deceased brought on the record or for having the 
abatement

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