plaintiff/respondent for setting-aside the abatement. The substitution application cannot be allowed unless the abatement is set-aside.
7. It has been further contended ... abatement is 60 days from the date of abatement which has not expired in the present case. Not filing the separate application for setting aside
Judge, FTC, Karimganj wrongly passed the order rejecting the
application for setting aside abatement and substitution of legal heirs of
respondent ... necessary under Order 22,
Rule 9. An order refusing to set aside abatement is specifically appealable as
an order under Order 43, Rule
setting aside the
abatement, therefore, the abatement of the suit as against the
deceased-defendant No. 4 cannot be set aside. The learned
trial court ... treated as an application for setting aside
abatement and in appropriate cases, the abatement can be set
aside and the legal representatives of the deceased
abatement may in
substance be construed as a prayer for setting aside
abatement. So also a prayer for setting aside abatement
as regard ... 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
that in the present case there
is neither any application for setting aside abatement nor any prayer
is made for condonation of delay by showing ... been abated unless the abatement is set
aside Court cannot pass any order except to set aside an abatement on
an application made
appellant thereafter filed applications for impleading the legal
representatives and for setting aside abatement. But these applications
were dismissed by a learned Single Judge ... order shall be held to include an
appeal, an application to set aside abatement of an
appeal is also possible. But these are insufficient
set aside by recourse to Order XXII Rule 9(2) of the Code of Civil
Procedure and if an application to set aside the abatement ... impugned judgment cannot be set aside on the ground that a
formal application to set aside the abatement had not been filed.
Learned counsel submitted
filed praying that said application be treated as an application for setting aside abatement. This application was also objected to and opposed by the petitioners ... aside the abatement from the date the suit or appeal abates. Thus, an application for substitution with a prayer to set aside abatement
SC1341 (10)
ACT:
Substitution-Application beyond time for setting aside
abatement-Lower Court's order set aside by High Court in
revision-Propriety-Power ... appellant made an application beyond time for
substitution, on setting aside the abatement of the suit he
had filed against the father of the respondents
heirs and legal representatives of deceased should nave been substituted after setting aside abatement and condoning the delay in making the application.
7. As there ... abatement can be set aside at any time even beyond the period prescribed for making an application for setting aside the abatement, if sufficient cause
