Madhya Pradesh High Court
Bharat Bhushan Paul Verma vs Union Bank Of India And Ors. on 25 March, 1991
Equivalent citations: 1991(0)MPLJ777
ORDER S.K. Jha, C.J.
1. This application is directed against the order dated 9-8-1989 passed by the Ist Additional District Judge to the Court of District Judge, Jabalpur in Civil Suit No. 4-A of 1989. The applicant was the defendant No. 1 in the suit having alleged to have taken a loan from the plaintiff/respondent No. 1 the Union Bank of India, and the original defendant No. 2 was one Narayan Prasad Goswami, who is said to be the guarantor and the mortgagor of the secured property. The suit by the respondent No. 1 Bank was instituted for recovery of the aforesaid loan along with the interest against both the applicant and the deceased Narayan Prasad Goswami (original defendant No. 2).
2. By the impugned order, the Court below has merely in one sentence said that the application for substitution of the heirs of deceased defendant No. 2 is allowed since he is dead and the delay is condoned. It is this order which is the subject matter of attack before this Court.
3. The admitted facts are these :
The suit was instituted on 20-1-1988. During the pendency of the suit, on 20th Oct., 1988, the aforesaid Narayan Prasad Goswami, defendant No. 2, died. Admittedly again, the plaintiff, respondent No. 1, got knowledge of the same on 10-1-1989. After that date, the plaintiff, respondent No. 1, went on taking adjournment after adjournment from the trial Court for purposes of taking steps for substitution of the heirs of deceased defendant No. 2, who have been impleaded as respondents Nos. (2)(i) to (viii) in the present civil revision. Such adjournments were taken orally by the counsel for the respondent No. 1 plaintiff on 16-2-1989, 8-3-1989, 6-4-1989, 2-5-1989, 4-7-1989 and 19-7-1989 to take steps for substitution. Ultimately on 9-8-1989, an application Under Order 22, Rule 4, Civil Procedure Code was filed along with an affidavit for condonation of delay Under Section 5, Limitation Act. No application was filed Under Order 22, Rule 9, Civil Procedure Code for setting aside the abatement after condonation of delay at any point of time. And the Court below has curiously enough, simply in one sentence, allowed the application Under Order 22, Rule 4, Civil Procedure Code and for condonation of delay Under Section 5, Limitation Act without assigning any reason therefor and without taking any notice of the fact that no application for setting aside abatement was made at all at any time.
Incidentally, it may also be mentioned that the present applicant's petition dated 6-4-1988 making a prayer for dismissing the suit on account of incompetency has also been dismissed by the same order. It seems the learned Additional District Judge does not seem to have sufficient knowledge and appreciation of the law with regard to abatement and substitution as provided in the Code of Civil Procedure.
4. It would bear repetition to highlight the point that the only application that had been filed by the plaintiff, respondent No. 1, was that dated 9-8-1989 which was an application for substitution simpliciter Under Order 22, Rule 4, Civil Procedure Code without any prayer for setting aside the abatement and bringing the LRs on record Under Order 12, Rule 9, Civil Procedure Code and that, obviously, could have been done only if the delay would then have been condoned Under Section 5, Limitation Act. The law is well settled that no specific order for abatement of a proceeding under one or the other provision of Order 22, Civil Procedure Code is envisaged by the Code of Civil Procedure. The abatement takes place on its own force by passage of time. In fact, a specific order is necessary Under Order 22, Rule 9, Civil Procedure Code for setting aside the abatement for which a period of 60 days from the date of knowledge is laid down under the law of Limitation. Obviously, in this case, the defendant No. 2 having died on 20-10-1988 abatement of the suit as against his heirs took place automatically by passage of time which is 90 days from the date of the death or if the party applying had no such knowledge, then within 60 days from the date of the knowledge on which the party applying has become aware of the fact that a party is dead and that his heirs have been substituted. In the instant case, even reckoning from the date of the knowledge, which is 10-1-1989, 60 days, relevant for the purpose of setting aside abatement Under Order 22, Rule 9, Civil Procedure Code could be 11th March, 1989. Even so, no application, worth the name, Under Order 22, Rule 9, Civil Procedure Code was filed at all for setting aside abatement. The question of condonation of delay Under Section 5 of the Limitation Act would arise only after 11-3-1989; but curiously enough, even after that date, adjournment after adjournment had been taken by the counsel for the plaintiff, respondent No. 1, without filing any application under any provision of Order 22, Civil Procedure Code before 9-8-1989. The impugned order, therefore, suffers from a jurisdictional error. The suit had already abated against the heirs of deceased defendant No. 2 and the abatement had never been set aside. The question of condonation of delay would be wholly academic in such circumstances. Even if that were permissible, there is nothing in the impugned order nor there was any indication whatsoever for the Court below to do so. The impugned order is, therefore, set aside. It is held that the suit abated as against the heirs of the deceased, defendant No. 2 namely the present respondents Nos. 2(i) to (viii).
5. As to what effect of such an abatement would have on the suit as a whole - as to whether the whole suit had become incompetent or not, the Court below may decide afresh and pass order in accordance with law. The applicant is entitled to his costs of this civil revision application. Application is accordingly allowed with costs. Counsel fee Rs. 250/- if certified.