ivil Appeal No 353 of 1 969
From the judgment and decree dated the 19th20th July 1965 of the High Court of Gujarat at Ahmedabad in First Appeal No 584 of 1960
MN phadke section C Patel and RN Poddar for the appellant
552 DV Patel RA Shraff Gopal Subramaniam and DP Mohanty 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 1979 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 979 when an application was made for that purpose but without being accompanied 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 198
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 11th March
1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date
Article 121 of the Limitation Act
The application actually made in that behalf was thus time barred by more than 3 months and a half
Mr Phadke learned counsel for the appellant does not dispute this proposition
He urges
however that the delay in making the application 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 representatives of the deceased brought on the record or for having the abatement set aside after it had taken place
His knowledge of the death of the respondent must be attributed to the appellant State 553 also and his negligence in not moving the Court in time must be deemed to be that of the appellant
Mr Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay
The contention is wholly without substance
The abatement stands in the way of the appeal being heard on merits which cannot therefore be looked into
No grounds for the condonation of the delay having been made out we refuse to set aside the abatement
The appeal is accordingly dismissed


Summary:
Dismissing the appeal by special leave the Court  HELD The abatement stands 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 survived to his Legal representatives b no application having been made within 90 days of the death
the appeal abated on the 11th of March 1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date under Article 121 of the Limitation Act and c the application actually made to set aside the abatement was time barred by more than three months and a half
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 either for having the legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place
His knowledge of the death of the respondent must be attributed 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 B