Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Abatement of suit/appeal I 908 Code of Civil Procedure |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Code of Civil Procedure, 1908:O. 41 r. 19 - Abatement of suit/appeal - Dismissal of appeal in respect of respondent No.3 and 6 for want of prosecution - Restoration application - 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 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 Society. The suit plot was transferred in the name of respondent No.3 on death of father. She entered into an agreement to sell the suit plot with respondent Nos.1 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 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.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 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 7 was set aside. |
Judge | Hon'ble Dr. Justice Arijit Pasayat |
Neutral Citation | 2007 INSC 844 |
Petitioner | Ramdas Shivram Sattur |
Respondent | Rameshchandra Popatlal Shah And Ors. |
SCR | [2007] 9 S.C.R. 101 |
Judgement Date | 2007-08-20 |
Case Number | 3807 |
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