IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1119 of 2008 RAGHUBANSH PANDEY Versus ASHOK KUMAR VERMA & ORS ----------- 4. 28.11.2008 Heard counsel for the petitioner and the counsel for the opposite parties. The approach of the court below in dismissing an appeal on the ground of its being having abated can have no exception in law. It is so because the law enjoins such abatement of a suit/ appeal in the event of non-substitution of the concerned person within a period of 90 days. There is no doubt that Radha Devi, respondent no.2, in T.A.No. 15A/1989 died on 23.9.1981 and no substitution application/ an application for expunging her name was filed within a period of 90 days. Thereafter one Gulabo Devi, another respondent, had filed an application on 31.7.1992 i.e. almost after ten months of the death of Radha Devi that the appeal as a whole has abated. The petitioner is said to have filed a reply to that application by taking a plea that Radha Devi had died leaving behind no heir and the entire estate is acquired by him by way of purchase of property of Radha 2 Devi and as such, he was the legal representative. On this plea the petitioner had made a prayer that the name of Radha Devi should be expunged. The said application filed by Gulabo Devi and its reply by the petitioner remained pending and ultimately by the impugned order the court below has held the appeal to have abated in the year 1991. Mr. Ratan Kumar Sinha, counsel for the petitioner, has submitted that such order of the court below cannot be sustained, because Radha Devi had never contested the suit and that the right to sue still survived with the petitioner himself as he had purchased the entire property. The plain and simple answer to both the submissions would be that this fact had to be brought on record by the petitioner within a period of 90 days by taking a plea that Radha Devi’s entire estate was acquired by him and he was legal representative and therefore, the appeal would not abate. This was also requirement of Order 22 Rule 10 C.P.C. which enjoins duty upon even any party to the suit/ appeal to inform the 3 court about the death of a party. This having been not done by the petitioner today he cannot be allowed to raise a plea in his defence while assailing the impugned order as abatement had already set in way back in the year 1991 upon completion of a period of 90 days. That being so, the abatement being mandate of law, this civil revision application only affirming that aspect of the impugned order does not require interference of this court. That being so, this application is wholly misconceived and is accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/