Ramdas Shivram Sattur vs Rameshchandra Popatlal Shah & Ors

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay High Court in the Second Appeal filed by the appellant; the defendant no.3 in Special Civil Suit No. 42 of 1981; before the High Court under Section 100 of the Code of Civil Procedure, 1908 (in short CPC). During pendecny of the appeal, an application was filed in terms of Order XLI Rule 19 of the CPC for setting aside the order dated 20.3.1987 passed by the learned Additional Registrar whereby he dismissed the second appeal against respondent nos.3 and 6 for non-prosecution. The prayer was also made to show the names of the applicant i.e. present appellant and respondent nos.5 to 7 in the second appeal as legal representatives of the deceased-respondent No.3. By the impugned order the High Court while accepting the prayer vis- `-vis respondent no.6 dismissed the same so far as respondent No.3 is concerned.

3. A brief reference to the factual aspects would be necessary:

Being aggrieved by the said order, Tarabai as well as the present appellant and the Cooperative Society filed Civil Appeal No.772 of 1984. However, the appeal was dismissed and trial Courts decree was confirmed. Being aggrieved, the appellant filed the Second Appeal against the original plaintiffs, Cooperative Society and the respondents 3 to 7 i.e. defendants 1 to 4, 5 and 6. The said appeal was admitted by the High Court on 20.6.1986 and stay on the lower courts decree was granted.

4. It appears from the record that respondents 1, 2 and 4 were served personally while respondent no.3 was served by affixing the notice with bailiff remarks gone on duty. Notice to the respondent no.6 was also returned unserved with remarks incomplete address. The High Court noticed that in terms of the provisions of Rule 6(id) of Chapter 7 of Bombay High Court Appeal Rules, 1960, the appellant was required to give postal stamps within the stipulated period. That was not done. The Additional Registrar dismissed the appeal in respect of Tarabai (respondent No.3 in the Second Appeal) and respondent no.6 for want of prosecution by order dated 20.3.1987. It also appears that the appeal was dismissed for non-removal of objections. An application for restoration was filed and the appeal was restored on 6.4.1999 by setting aside the order dated 10.11.1997. At that time the appellant made a statement that Second Appeal has abated against respondents 5 and 7 and he was pressing civil application for restoration only against respondent nos.1 and 2. It was accordingly restored.

The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. Once the prayer made by the legal representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirely even though there was no specific prayer made and no specific order of the court passed in that behalf.

13. In view of the factual position noticed above, High Court was not justified in refusing application for restoration so far as respondent no.3 is concerned. But she is dead and her legal representatives are already on record i.e. appellant and respondents 5, 6 and 7. The appeal shall not abate so far as respondent No. 3 is concerned.

14. The appeal is allowed without any order as to costs.