Holding

A substitution application filed by the heirs of a deceased party is sufficient, the prayer for setting aside abatement is inherent therein, and the High Court’s dismissal was erroneous, so the abatement of the second appeals is set aside.

Summary

The case arose from two second appeals concerning specific performance suits where the respondents died during pendency. The heirs of the deceased respondents filed substitution applications, but the High Court dismissed applications for condonation of delay and held the appeals abated. The Supreme Court examined the procedural requirements under Order XXII of the CPC, Articles 120 and 121 of the Limitation Act, and the duty under Rule 10‑A, concluding that a substitution application by the heirs suffices and that a prayer for setting aside abatement is inherent in such applications. Applying the liberal principles of Section 5 of the Limitation Act as articulated in Perumon Bhagvathy Devaswom, the Court found sufficient cause for the delay and rejected the High Court’s finding of abatement. Consequently, the Court set aside the orders of abatement, restored the appeals, and granted the substitution of the heirs as respondents.

Issues considered

Whether the High Court was justified in dismissing the application for condonation of delay in filing the substitution application and in deeming the second appeal abated.
Whether an application for substitution filed by the heirs of a deceased party suffices without a separate application by the appellant.
Whether the prayer for setting aside abatement is inherent in a substitution application.
The correct procedural sequence for filing substitution, setting aside abatement, and condonation of delay under the Limitation Act and Order XXII CPC.
Whether compliance with Rule 10‑A of Order XXII CPC was satisfied in the present facts.

Legislation cited

Code of Civil Procedure, 1908s. Order XXII Rule 1, s. Order XXII Rule 10-A, s. Order XXII Rule 3, s. Order XXII Rule 4
Constitution of Indias. Article 136
Limitation Act, 1963s. Article 120, s. Article 121, s. Section 5

Headnote

Issue for Consideration The issues before the Hon’ble Court were as to whether the High Court was justified in dismissing the application for condonation of delay in filing the application for substitution and could the second appeal be regarded and as to what is the proper sequence in which the said applications are to be filed. Headnotes† Section 5 of Limitation Act, 1963 – Application for setting aside abatement and application for condonation of delay in filing the former application – Principles to be kept in mind

Subjects

Application for substitution of legal representativesApplication for setting aside abatementCondonation of delaySufficient causeLimitation ActCPC Order XXIIAbatementJustice-oriented approach

Judgment

[2025] 2 S.C.R. 937 : 2025 INSC 183

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors.
v.
Satish Chandra (Now Deceased)
(Civil Appeal No(s). 13407-13408 of 2024)
11 February 2025
[Dipankar Datta* and Prashant Kumar Mishra, JJ.]

Issue for Consideration
The issues before the Hon’ble Court were as to whether the High
Court was justified in dismissing the application for condonation of
delay in filing the application for substitution and could the second
appeal be regarded as having abated; and as to what is the proper
sequence in which the said applications are to be filed.

Headnotes†
Section 5 of Limitation Act, 1963 – Application for setting
aside abatement and application for condonation of delay in
filing the former application – Principles to be kept in mind by
the Court as laid down in Perumon Bhagvathy Devaswom v.
Bhargavi Amma (2008) 8 SCC 321. [Para 8]

Section 5 of Limitation Act, 1963 – Circumstances that are
considered sufficient cause summarised in Perumon Bhagvathy
Devaswom v. Bhargavi Amma (2008) 8 SCC 321. [Para 9]

Order XXII of Code of Civil Procedure, 1908 r/w Articles 120
and 121 of Limitation Act, 1963 – Time frames laid out in the
said provisions discussed – Proper sequence to be followed
explained:
Held: Order XXII of Code of Civil Procedure, 1908 – Rule 1 states
that when a party to a suit passes away, the suit will not abate if
the right to sue survives – Rules 3 and 4 deal with the procedure
for bringing on record the legal representative(s) of the plaintiff/
appellant and the defendant/respondent respectively when the
right to sue survives – Limitation Act, 1963 – Article 120 states
that the suit/appeal automatically abates when an application to
substitute the legal representative(s) of the deceased party is not

* Author
938 [2025] 2 S.C.R.

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filed within the prescribed limitation period of 90 days from the
date of death – Article 121 allows the appellant 60 days to file an
application seeking setting aside of the abatement after the expiry
of the aforesaid 90 days – After the expiry of the 150 days (90 + 60
days) the application to set aside abatement should be accompanied
with a petition to condone delay under Section 5 of Limitation
Act – Plaintiff/ appellant to satisfy the Court that sufficient cause
prevented him/her from applying for setting aside the abatement
within the period of limitation. [Para 11]

Rule 4 of Order XXII of Code of Civil Procedure, 1908 – Who
has to present application for substitution - Examined in light
of judicial pronouncements:
Held: In Union of India v. Ram Charan AIR 1964 SC 215, it was
held that Rule 4 of Order XXII does not say who has to present
the application and that usually it is the plaintiff/appellant who does
it as it is he who stands to lose if the suit/appeal is abated – In
Civil Appeal 13407/2024 the Respondent/ Defendant’s LRs had
moved an application for substitution when the sole defendant
(predecessor-in-interest of the Respondents herein) died – A
justice oriented approach has to be applied while interpreting
the provisions of the Code of Civil Procedure, 1908 as held by
this Hon’ble Court in Chinnammal v. P. Arumugham (1990)
1 SCC 513 – Since the Court was thus informed of the death
of the Respondent/Defendant and the heirs that he had left
behind, the dismissal of second appeal as having abated cannot
sustain. [Paras 14-16, 19]

Article 136 of Constitution of India – Power of Supreme Court
to cure manifestly illegal order to avoid travesty of justice:
Held: This Court reiterated the ratio in A. Subash Babu v. State
of A.P. (2011) 7 SCC 616 that under Art. 136 it has power to
pass orders in favour of a party suo motu when it is satisfied
that compelling grounds for it exist even when the order is not
in challenged before it – It has the power to mould relief taking
notice an obvious error of law committed by the High Court.
[Para 21]

Whether prayer of setting aside abatement inherent in the
prayer for substitution:
[2025] 2 S.C.R. 939

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

Held: In Mithailal Dalsangar Singh v. Annabai Devram Kini
(2003) 10 SCC 691 it was held that a simple prayer for bringing
the legal representatives on record without specifically praying for
setting aside of an abatement may in substance be construed as
a prayer for setting aside the abatement – A prayer for bringing the
legal representatives on record, if allowed, would have the 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 actually
asked for and is necessarily implied – The Courts have to adopt a
justice-oriented approach dictated by the uppermost consideration
that ordinarily a litigant ought not to be denied an opportunity of
having a lis determined on merits unless he has, by gross negligence,
deliberate inaction or something akin to misconduct, disentitled
himself from seeking the indulgence of the Court. [Paras 23, 32]

Order XXII Rule 10-A, Code of Civil Procedure, 1908 – Purpose
and whether it is complied with:
Held: It was inserted vide the amendment of 1976 in the CPC –
Thereby, a duty is cast upon a pleader appearing for a party to the
suit to intimate the Court about the death of such party and once
the Court is informed by the pleader of a party that he is no more,
the Court “shall” notify the opposing party of the death – Court’s
obligation to issue notice to the other party is indeed mandatory
except when the intimation to Court is given in presence of the
opposite counsel or when the Court records it in the order sheet – The
purpose for its introduction as held by this Court in Gangadhar v.
Raj Kumar (1984) 1 SCC 121 is to specifically mitigate the hardship
arising from the fact that the party to an appeal may not come to
know about the death of the other party during the pendency of
the appeal but when it is awaiting its turn for being heard – It is
an innovative provision to see that administration of justice is not
thwarted by technical procedural lapse whereby, a duty is cast
upon the learned advocate appearing for the party who comes to
know about the death of the party to intimate to the Court about the
death of the party represented by him – A deemed continuation of
the contract between dead client and lawyer subsists to the limited
extent after the death of the client – It is implicit that this information
must be conveyed in a straightforward and unambiguous manner
to enable the plaintiff or the appellant, as the case may be, to take
steps and apply for substitution – The inclusion of such pertinent
940 [2025] 2 S.C.R.

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information within an inconspicuous section of an application meant
for a different purpose without the date of death does not constitute
sufficient compliance with Rule 10-A. [Paras 27-30]

Case Law Cited
Perumon Bhagvathy Devaswom v. Bhargavi Amma [2008] 11 SCR 1 :
(2008) 8 SCC 321; Union of India v. Ram Charan [1964] SCR
467 : AIR 1964 SC 215; Chinnammal v. P. Arumugham [1990]
1 SCR 78 : (1990) 1 SCC 513; A. Subash Babu v. State of A.P.
[2011] 9 SCR 453 : (2011) 7 SCC 616; Mithailal Dalsangar Singh v.
Annabai Devram Kini [2003] Supp. 3 SCR 822 : (2003) 10 SCC
691; Gangadhar v. Raj Kumar (1984) 1 SCC 121 – relied on.

List of Acts
Limitation Act, 1963; Code of Civil Procedure, 1908; Constitution
of India, 1950.

List of Keywords
Application for substitution of legal representatives; Application for
setting aside abatement; Condonation of delay; Sufficient cause.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No(s). 13407 of
2024
From the Judgment and Order dated 27.02.2019 of the High Court
of Judicature at Allahabad in SA No. 885 of 1977
With
Civil Appeal No. 13408 of 2024

Appearances for Parties
Advs. for the Appellant:
Thomas P Joseph, Shekhar Devasa, Sr. Advs., A Velan,
Ms. Navpreet Kaur, Rudraksh Gupta.
Advs. for the Respondent:
Raghenth Basant, Sr. Adv., Nishant Anand, Mrs. Gunjan Bansal
Anand, Anushasit Arya, Ms. Hima Bhardwaj, Shakib, Sandeep
Sury, Abhigya Kushwah, Mrs. Sunita Singh.
[2025] 2 S.C.R. 941

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

Judgment / Order of the Supreme Court

Judgment

Dipankar Datta, J.

Brief Resume of facts

1. Facts of Civil Appeal No. 13407 of 2024:
a. Satish Chandra instituted a suit1 against Om Prakash Gupta2
seeking specific performance of an agreement.3 The suit was
dismissed by the trial court4 vide judgment and order dated
7th October, 1974. In first appeal,5 Satish Chandra succeeded
and the suit was decreed vide judgment and decree dated
31st March, 1977. Aggrieved, Om Prakash preferred a second
appeal6 before the High Court of Judicature at Allahabad.7 The
High Court granted stay of operation of the decree vide order
dated 11th May, 1977.
b. Satish Chandra passed away on 2nd December 1996 during
the pendency of the second appeal. On 2nd January, 1997, his
heirs moved an application for substitution.8 The High Court
was informed of the death of Satish Chandra by the heirs and
prayer was made for their substitution. Paragraph no. 1 of the
application for substitution contained details as follows:
“That in the above noted second appeal, the sole
respondent Satish Chandra son of Sri Ram died on
2.12.1996 leaving behind the following heirs and
legal representatives: -

1 Civil Suit No. 264/1972
2 Om Prakash
3 agreement to sell dated 8th February,1970
4 the court of the Civil Judge, Bareilly
5 Civil Appeal No.11 of 1975
6 Second Appeal No. 885 of 1977
7 High Court, hereafter
8 Civil Miscellaneous Substitution Application No. 211 of 1997
942 [2025] 2 S.C.R.

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1/1 Anil Kumar
1/2 Vimal Kumar
1/3 Manoj Kumar”
Prayer in the said application is as follows:
“It is prayed that the Hon’ble Court may be pleased
to delete the name of the respondent no. 1 Sri Satish
Chandra from array of the parties and on his place
the following:
1/1 Anil Kumar
1/2 Vimal Kumar
1/3 Manoj Kumar
All sons of Late Sri Satish Chandra
R/o Gandhi Tola, Nawabganj, Bareilly
Be substituted as his heirs and legal representatives”
c. Om Prakash died on 8th December 2001.
d. From the sequence of orders passed in the second appeal
between 17th March, 2004 and 8th December, 2006, it is seen
that multiple opportunities were given to counsel for Om Prakash
to file an application for substitution. However, pendency of the
application for substitution filed by the heirs of Satish Chandra
escaped the notice of the High Court.
e. Ultimately, the second appeal was ordered to have abated in
the whole vide order dated 2nd January 2007 on the ground
that no application for substitution was filed by Om Prakash or
his heirs to bring on record the heirs/legal representatives of
Satish Chandra.
f. In the year 2017, the heirs of Satish Chandra initiated
proceedings for execution of the decree.9
g. Put on notice, the heirs of Om Prakash preferred an application
for recall/restoration10 seeking recall of the aforesaid order

9 E.A. No. 6 of 2017
10 Civil Miscellaneous Restoration Application No. 2 of 2018
[2025] 2 S.C.R. 943

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

recording abatement of the second appeal. On the same day,
they also filed an application for substitution11 along with an
application for condonation of delay.12
h. The restoration application was allowed by the High Court and
the second appeal restored to its original file and number vide
order dated 25th May, 2018.
i. Seeking recall of the said order, heirs of Satish Chandra
preferred an application for recall13 along with an application for
condonation of delay.14 These applications were allowed vide
order dated 11th January 2019, with the result that the order
restoring the second appeal to its original file upon setting aside
of abatement stood recalled. Liberty was, however, reserved
for the heirs of Om Prakash to file an application for setting
aside abatement.
j. While hearing the pending applications, referred to in paragraph
g. (supra), the High Court did not find sufficient reasons for
condoning the delay in filing the application for substitution.
Resultantly, such application filed by the heirs of Om Prakash
along with the application for substitution was dismissed vide
impugned order dated 27th February 2019.
k. Taking exception to such order of the High Court, the heirs of
Om Prakash have filed Civil Appeal No. 13407 of 2024.

2. Facts of Civil Appeal No. 13408 of 2024:
a. Smt. Rooprani,15 Satish Chandra’s wife, instituted a suit16 for
specific performance of an agreement17 against Om Prakash
and his minor sons (represented through their mother). The
suit was dismissed vide order dated 7th October, 1974 by the

11 Civil Miscellaneous Substitution Application No. 5 of 2018
12 Civil Miscellaneous Delay Condonation Application No. 4 of 2018
13 Recall Application No. 7 of 2018
14 I.A. No. 8 of 2018
15 Rooprani
16 Suit No. 94 of 1973
17 agreement to Sell dated 7th June, 1970
944 [2025] 2 S.C.R.

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Trial Court.18 In an appeal19 preferred by Rooprani, the suit was
decreed vide judgment and decree dated 31st March, 1977. Om
Prakash carried the first appellate decree in a second appeal.20
The High Court granted stay of operation of the impugned
decree vide order dated 11th May, 1977.
b. After the death of Rooprani on 18th May, 1991, an application21
was filed on or about November/December, 1992 by deceased
Rooprani’s son, Anil Kumar, praying that the High Court may
take note of an alteration made by Om Prakash and his heirs
in the decretal property. In the affidavit accompanying such
application, it was stated that the deponent (Anil Kumar) is
one of the sons of deceased Rooprani (plaintiff). The same is
reproduced below:
“That the deponent is one of the sons of the deceased
respondent Smt. Roop Rani and conversant with the
facts deposed.”
c. As noted earlier, Om Prakash passed away on 8th December,
2001.
d. The second appeal of Om Prakash was dismissed for non-
prosecution22 as the counsel for the remaining appellants
(the heirs of Om Prakash) submitted that his clients were not
responding.
e. After almost 11 (eleven) years, on 15th September, 2017, the legal
representatives of Rooprani filed for execution of the decree.23
f. This is when the heirs of Om Prakash, on 5th April, 2018, filed an
application24 seeking recall of the order dismissing the second
appeal for want of prosecution. They filed an application,25
40 (forty) days later, praying for their substitution as heirs of

18 Court of Civil Judge, Bareilly
19 Appeal No. 12 of 1975
20 Second Appeal No. 884 of 1977
21 C.M.A. No. 5306 of 1992
22 vide order dated 3rd November, 2006
23 E.A. No. 7 of 2017
24 Recall/ Restoration Application No. 2 of 2018 in Second Appeal No. 884 of 1977
25 Civil Miscellaneous Substitution Application No. 5 of 2018
[2025] 2 S.C.R. 945

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

deceased Om Prakash, along with an application seeking
condonation of delay.26
g. Finding that sufficient cause had been shown, the High Court
allowed the recall application and restored the second appeal
to its original file and number vide order dated 25th May, 2018.
h. Seeking recall of the aforesaid order, the heirs of Rooprani filed
a recall application27 which was dismissed by the High Court
vide order dated 11th January, 2019. The High Court opined
that restoration of the second appeal, in itself, did not amount
to setting aside of the abatement and unless abatement is set
aside, the second appeal is non-est in the eyes of law and no
right will accrue to either side.
i. Thereafter, the impugned orders were passed by the High Court
on 27th February, 2019. By the first order, the application by heirs
of Om Prakash for condonation of delay in filing the substitution
application28 was dismissed. The second order, having regard
to the first order, dismissed their application for substitution.29
For the reasons assigned in the first order, the High Court did
not find sufficient reasons to condone the delay.
j. Taking exception to the above, the heirs of Om Prakash have
filed Civil Appeal No. 13408 of 2024.

Proceedings before this Court
3. A coordinate bench of this Court, on 12 th July, 2019, granted
permission to file the special leave petitions and issued notice on such
petitions as well as the accompanying applications for substitution
and the connected applications. Pursuant to service of notice, the
heirs of Satish Chandra and Rooprani entered appearance. Mr.
Thomas Joseph, learned senior counsel and Mr. Shekar Devessa,
learned senior counsel represented the heirs of Om Prakash. Heirs
of Rooprani were represented by Mr. Raghenth Basant, learned
senior counsel. While granting leave and reserving judgment on

26 Civil Miscellaneous Application No. 4 of 2018
27 Recall Application No. 7 of 2018
28 C.M. Delay Condonation Application No.4 of 2018
29 C.M. Substitution Application No.5 of 2018
946 [2025] 2 S.C.R.

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these civil appeals, we had made an order allowing the applications
for substitution and the connected applications, filed in the present
proceedings, subject to just exceptions.

Contentions of the parties
4. Learned senior counsel/counsel appearing for the parties have
meticulously taken us through the facts of both these appeals which,
though not very complicated, are a bit extensive considering that
proceedings commenced in 1972-1973.
5. Learned senior counsel/counsel for the appellants have argued
that the High Court fell in error on both occasions by not granting
the prayers of the appellants and having the two second appeals
heard on merits. According to them, procedural requirements have
been allowed to steal a march over substantive justice without duly
appreciating the materials on record.
6. Per contra, Mr. Basant appearing for the respondents has assiduously
contended that there is no infirmity, far less manifest infirmity, in
the impugned orders of the High Court and no interference under
Article 136 of the Constitution is warranted. He highlighted how Om
Prakash was negligent in pursuing the second appeals before the
High Court. According to him, it well within the knowledge of Om
Prakash that Rooprani and then Satish Chandra passed away and
who their heirs were. Lack of due diligence by Om Prakash being writ
large, he prayed that the longstanding dispute between the parties
be laid to rest by dismissing these appeals and leaving it open to
the respondents to pursue the execution applications in accordance
with law, should the need arise.

Issues
7. The issue arising for decision in C.A. No.13407 of 2024 is, whether the
High Court was justified in dismissing the application for condonation
of delay in filing the application for substitution and could the second
appeal be regarded as having abated.
8. In C.A. No. 13407 of 2024, whether the High Court was justified
in passing the impugned orders dismissing the applications filed
by the appellants seeking substitution and condonation of delay
is the issue.
[2025] 2 S.C.R. 947

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

Analysis and Reasons
9. The principles to guide courts while considering applications for
setting aside abatement and application for condonation of delay in
filing the former application are laid down by this Court in Perumon
Bhagvathy Devaswom v. Bhargavi Amma.30 An instructive passage
from such decision reads as follows:
“13. The principles applicable in considering applications
for setting aside abatement may thus be summarised as
follows:
(i) The words ‘sufficient cause for not making the application
within the period of limitation’ should be understood and
applied in a reasonable, pragmatic, practical and liberal
manner, depending upon the facts and circumstances
of the case, and the type of case. The words ‘sufficient
cause’ in Section 5 of the Limitation Act should receive a
liberal construction so as to advance substantial justice,
when the delay is not on account of any dilatory tactics,
want of bona fides, deliberate inaction or negligence on
the part of the appellant.
(ii) In considering the reasons for condonation of delay,
the courts are more liberal with reference to applications
for setting aside abatement, than other cases. While the
court will have to keep in view that a valuable right accrues
to the legal representatives of the deceased respondent
when the appeal abates, it will not punish an appellant
with foreclosure of the appeal, for unintended lapses. The
courts tend to set aside abatement and decide the matter
on merits, rather than terminate the appeal on the ground
of abatement.
(iii) The decisive factor in condonation of delay, is not the
length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a
court depends on the nature of application and facts and
circumstances of the case. For example, courts view

30 (2008) 8 SCC 321
948 [2025] 2 S.C.R.

Supreme Court Reports

delays in making applications in a pending appeal more
leniently than delays in the institution of an appeal. The
courts view applications relating to lawyer’s lapses more
leniently than applications relating to litigant’s lapses. The
classic example is the difference in approach of courts to
applications for condonation of delay in filing an appeal
and applications for condonation of delay in refiling the
appeal after rectification of defects.
(v) Want of ‘diligence’ or ‘inaction’ can be attributed to an
appellant only when something required to be done by
him, is not done. When nothing is required to be done,
courts do not expect the appellant to be diligent. Where an
appeal is admitted by the High Court and is not expected
to be listed for final hearing for a few years, an appellant
is not expected to visit the court or his lawyer every few
weeks to ascertain the position nor keep checking whether
the contesting respondent is alive. He merely awaits the
call or information from his counsel about the listing of
the appeal.”
(emphasis supplied in original)

The aforesaid passage is followed by other instructive passages
too on special factors which have a bearing on what constitutes
“sufficient cause”, with reference to delay in applications for setting
aside abatement and bringing the legal representatives on record.
To the extent relevant for decisions on these two appeals, the same
are extracted hereunder:
“15. The first is whether the appeal is pending in a court
where regular and periodical dates of hearing are fixed.
There is a significant difference between an appeal pending
in a subordinate court and an appeal pending in a High
Court. In lower courts, dates of hearing are periodically
fixed and a party or his counsel is expected to appear on
those dates and keep track of the case. The process is
known as ‘adjournment of hearing’. ...
16. In contrast, when an appeal is pending in a High
Court, dates of hearing are not fixed periodically. Once
the appeal is admitted, it virtually goes into storage and
[2025] 2 S.C.R. 949

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

is listed before the Court only when it is ripe for hearing
or when some application seeking an interim direction is
filed. It is common for appeals pending in High Courts not
to be listed at all for several years. (In some courts where
there is a huge pendency, the non-hearing period may be
as much as ten years or even more.) When the appeal is
admitted by the High Court, the counsel inform the parties
that they will get in touch as and when the case is listed
for hearing. There is nothing the appellant is required to
do during the period between admission of the appeal
and listing of the appeal for arguments (except filing paper
books or depositing the charges for preparation of paper
books wherever necessary). The High Courts are overloaded
with appeals and the litigant is in no way responsible for
non-listing for several years. There is no need for the
appellant to keep track whether the respondent is dead or
alive by periodical enquiries during the long period between
admission and listing for hearing. When an appeal is so
kept pending in suspended animation for a large number
of years in the High Court without any date being fixed for
hearing, there is no likelihood of the appellant becoming
aware of the death of the respondent, unless both lived in
the immediate vicinity or were related or the court issues a
notice to him informing the death of the respondent.
17. The second circumstance is whether the counsel for
the deceased respondent or the legal representative of
the deceased respondent notified the court about the
death and whether the court gave notice of such death to
the appellant. Rule 10-A of Order 22 casts a duty on the
counsel for the respondent to inform the court about the
death of such respondent whenever he comes to know
about it. When the death is reported and recorded in the
order-sheet/proceedings and the appellant is notified, the
appellant has knowledge of the death and there is a duty
on the part of the appellant to take steps to bring the legal
representative of the deceased on record, in place of the
deceased. The need for diligence commences from the
date of such knowledge. If the appellant pleads ignorance
even after the court notifies him about the death of the
950 [2025] 2 S.C.R.

Supreme Court Reports

respondent that may be an indication of negligence or
want of diligence.
18. The third circumstance is whether there is any material
to contradict the claim of the appellant, if he categorically
states that he was unaware of the death of the respondent.
In the absence of any material, the court would accept his
claim that he was not aware of the death.
19. Thus it can safely be concluded that if the following
three conditions exist, the courts will usually condone the
delay, and set aside the abatement (even though the period
of delay is considerable and a valuable right might have
accrued to the opposite party—LRs of the deceased—on
account of the abatement):
(i) The respondent had died during the period when the
appeal had been pending without any hearing dates being
fixed;
(ii) Neither the counsel for the deceased respondent nor
the legal representatives of the deceased respondent had
reported the death of the respondent to the court and the
court has not given notice of such death to the appellant;
(iii) The appellant avers that he was unaware of the death
of the respondent and there is no material to doubt or
contradict his claim.
(emphasis supplied)

10. Having the benefit of the aforesaid pertinent guiding principles, we
also consider it prudent to dwell on another matter of some importance
which quite frequently this Court is called upon to consider. It is the
appropriate sequence in which remedies available to have an order for
setting aside abatement of a suit should be pursued. This discussion
is necessitated in view of the facts in C.A. No.13408 of 2024 revealing
that the appellants had applied for substitution and an application for
condonation of delay in filing the former application was filed, without
there being an application for setting aside the abatement.
11. Rule 1 of Order XXII, CPC provides that when a party to a suit passes
away, the suit will not abate if the right to sue survives. In instances
where the right to sue does survive, the procedure for bringing on
[2025] 2 S.C.R. 951

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

record the legal representative(s) of the plaintiff/appellant and the
defendant/respondent are provided in Rules 3 and 4, respectively, of
Order XXII. The suit/appeal automatically abates when an application
to substitute the legal representative(s) of the deceased party is not
filed within the prescribed limitation period of 90 days from the date of
death, as stipulated by Article 120 of the Limitation Act, 1963. It could
well be so that death of a defendant/respondent is not made known
to the plaintiff/appellant within 90 days, being the period of limitation.
Does it mean that the suit or appeal will not abate? The answer in
view of the scheme of Order XXII cannot be in the negative. In the
event the plaintiff/appellant derives knowledge of death immediately
after the suit/appeal has abated, the remedy available is to file an
application seeking setting aside of the abatement, the limitation
wherefor is stipulated in Article 121 and which allows a period of
60 days. Therefore, between the 91st and the 150th day after the
death, one has to file an application for setting aside the abatement.
On the 151st day, this remedy becomes time-barred; consequently,
any application seeking to set aside the abatement must then be
accompanied by a request contained in an application for condonation
of delay under Section 5 of the Limitation Act in filing the application
for setting aside the abatement. Thus, the total time-frame for filing
an application for substitution and for setting aside abatement, as
outlined in Articles 120 and 121 of the Limitation Act, is 150 (90 + 60)
days. The question of condonation of delay, through an application
under Section 5 of the Limitation Act, arises only after this period and
not on the 91st day when the suit/appeal abates. From our limited
experience on the bench of this Court, we have found it somewhat
of a frequent occurrence that after abatement of the suit and after
the 150th day of death, an application is filed for condonation of
delay in filing the application for substitution but not an application
seeking condonation of delay in filing the application for setting aside
the abatement. The proper sequence to be followed, therefore, is
an application for substitution within 90 days of death and if not
filed, to file an application for setting aside the abatement within 60
days and if that too is not filed, to file the requisite applications for
substitution and setting aside the abatement with an accompanying
application for condonation of delay in filing the latter application,
i.e., the application for setting aside the abatement. Once the court
is satisfied that sufficient cause prevented the plaintiff/appellant
from applying for setting aside the abatement within the period of
952 [2025] 2 S.C.R.

Supreme Court Reports

limitation and orders accordingly, comes the question of setting the
abatement. That happens as a matter of course and following the
order for substitution of the deceased defendant/respondent, the
suit/appeal regains its earlier position and would proceed for a trial/
hearing on merits. Be that as it may.
12. We proceed with C.A. No.13407 of 2024 first.
13. Having regard to the facts noticed above, this appeal would require
us to decide whether the heirs of Om Prakash were required to
file a separate application for substitution when, admittedly, an
application for substitution (Civil Misc. Substitution Application No. 211
of 1997) had previously been filed by the heirs of Satish Chandra.
If the answer is in the negative, the impugned orders and also the
order dated 2nd January 2007 (vide which the second appeal was
dismissed as abated) will have to be set aside, since dismissal of a
second appeal as abated despite pendency of a valid substitution
application would be bad in law.
14. Order XXII of the Code of Civil Procedure31 is titled Death, Marriage
and Insolvency of Parties. Rule 4 thereof lays down the procedure
in case of death of one of several defendants or of sole defendant.
It is clear on perusal of such rule that it does not expressly provide
who between the parties to a civil suit is to present an application
for substitution.
15. In Union of India v. Ram Charan,32 this Court held:
“10. It is not necessary to consider whether the High Court
applied its earlier Full Bench decision correctly or not when
we are to decide the main question urged in this appeal
and that being the first contention. Rules 3 and 4 of Order
22 CPC lay down respectively the procedure to be followed
in case of death of one of several plaintiffs when the right
to sue does not survive to the surviving plaintiffs alone or
that of the sole plaintiff when the right to sue survives or of
the death of one several defendants or of sole defendant
in similar circumstances. The procedure requires an
application for the making of the legal representatives of

31 CPC
32 AIR 1964 SC 215
[2025] 2 S.C.R. 953

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

the deceased plaintiff or defendant a party to the suit. It
does not say who is to present the application. Ordinarily
it would be the plaintiff as by the abatement of the suit
the defendant stand to gain. However, an application is
necessary to be made for the purpose. If no such application
is made within the time allowed by law, the suit abates so
far as the deceased plaintiff is concerned or as against
the deceased defendant. The effect of such an abatement
on the suit of the surviving plaintiffs or the suit against the
surviving defendants depends on other considerations as
held by this Court in State of Punjab v. Nathu Ram [AIR
1962 SCR 89] and Jhandha Singh v. Gurmukh Singh [CA
No. 344 of 1956 decided on April 10, 1962]. Anyway, that
question does not arise in this case as the sole respondent
had died.”
(emphasis supplied)

16. The law, laid down in Ram Charan (supra), is clear. There seems
to be no legal requirement that on the death of a defendant, an
application for substitution in all cases has to be made by the
plaintiff only and that, any application, made by the heir(s)/legal
representative(s) of the deceased defendant seeking an order to
allow him/them step into the shoes of the deceased defendant and
to contest the suit, cannot be considered. Once an application has
been made by either party and the court has been informed about
the death of a party and who the heir(s)/legal representative(s) he
has left behind, the only thing that remains for the court is to pass
an order substituting the heir(s)/legal representative(s). Such being
the case, we have no doubt in holding that the application moved
by the heirs of Satish Chandra (Civil Misc. Substitution Application
No. 211 of 1997), whereby the court was informed by them of
his death and the heirs that he had left behind, amounted to an
application for substitution which was legally permissible and valid
and deserved consideration.
17. According to Mr. Basant, the application filed by the heirs of Satish
Chandra was an application intimating the death of Satish Chandra
under Order XXII Rule 10-A, CPC and it was not an application under
Rule 4 thereof; thus, there being no valid and proper application for
substitution, the appeal was rightly held to have abated.
954 [2025] 2 S.C.R.

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18. We find no force in the argument advanced by Mr. Basant. The
application filed by the heirs of Satish Chandra was registered as
a substitution application and the prayer was also for deletion of
the name of Satish Chandra and substitution of his three sons in
his place. In view thereof and having regard to the law laid down in
Ram Charan (supra), we hold that an application having been filed
by the heirs of Satish Chandra, the heirs of Om Prakash were not
legally obliged to apply separately for substitution.
19. In our opinion, the law not having expressly mandated that an
application for substitution has to be filed by the plaintiff/appellant
upon receiving intimation of death, requiring a formal application from
the plaintiff only will serve no tangible purpose. A justice-oriented
approach has to be followed in interpreting the provisions of the
CPC is the well settled law. Reference may usefully be made to the
decision in Chinnammal v. P. Arumugham,33 where it was held:
“17. It is well to remember that the Code of Civil Procedure
is a body of procedural law designed to facilitate justice
and it should not be treated as an enactment providing
for punishments and penalties. The laws of procedure
should be so construed as to render justice wherever
reasonably possible. It is in our opinion, not unreasonable
to demand restitution from a person who has purchased
the property in court auction being aware of the pending
appeal against the decree.”
(emphasis supplied)

20. The High Court having been duly informed of the death of Satish
Chandra, and substitution having been prayed by the heirs of the
deceased, it ought to have proceeded to consider such application
and pass an order bringing the heirs of the deceased respondent
on record. This, the High Court omitted to order, perhaps, due to
inadvertence whereby pendency of the application for substitution
filed by the heirs of Satish Chandra escaped its notice.
21. Therefore, the order dated 2nd January 2007 vide which the second
appeal was dismissed as having abated cannot sustain and will have

33 (1990) 1 SCC 513
[2025] 2 S.C.R. 955

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

to be set aside. The said order, though not under challenge before
this Court, there is no bar for this Court to erase defective orders by
setting them aside, even in the absence of any challenge thereto. In
A. Subash Babu v. State of A.P.,34 this Court discussed its powers
to make any order to cure a manifest illegality and to avoid travesty
of justice even in the absence of any challenge to such order, and
proceeded to express as follows:
“58. There may be several reasons due to which the State
might not have challenged that part of the judgment of
the learned Single Judge quashing the complaint filed by
Respondent 2 under Section 498-A of the Penal Code. So
also because of several reasons such as want of funds,
distance, non-availability of legal advice, etc. the original
complainant might not have approached this Court to
challenge that part of the judgment of the learned Single
Judge which is quite contrary to the law declared by this
Court. However, this Court while entertaining an appeal
by grant of special leave has the power to mould relief
in favour of the respondents notwithstanding the fact that
no appeal is filed by any of the respondents challenging
that part of the order which is against them. To notice
an obvious error of law committed by the High Court
and thereafter not to do anything in the matter would be
travesty of justice.
59. This Court while disposing of an appeal arising out of
grant of special leave can make any order which justice
demands and someone who has obtained an illegal order
would not be justified in contending before this Court that in
the absence of any appeal against an illegal order passed
by the High Court the relief should not be appropriately
moulded by the Court or that the finding recorded should
not be upset by this Court.

x x x
66. Further, the powers under Article 136 can be exercised
by the Supreme Court, in favour of a party even suo motu

34 (2011) 7 SCC 616
956 [2025] 2 S.C.R.

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when the Court is satisfied that compelling grounds for its
exercise exist. Where there is manifest injustice, a duty is
enjoined upon this Court to exercise its suo motu power by
setting right the illegality in the judgment of the High Court
as it is well settled that illegality should not be allowed to be
perpetuated and failure by this Court to interfere with the
same would amount to allow illegality to be perpetuated.
67. When an apparent irregularity is found by this Court in
the order passed by the High Court, the Supreme Court
cannot ignore substantive rights of a litigant while dealing
with the cause pending before it. There is no reason why the
relief cannot be and should not be appropriately moulded
while disposing of an appeal arising by grant of special
leave under Article 136 of the Constitution.”
(emphasis supplied)

22. There is another equally important aspect, which merits our attention.
The second appeal was restored by the High Court vide order dated
25th May, 2018. This order, restoring the second appeal, was recalled
vide order dated 11th January 2019. The reason given was that, in the
absence of an application praying for setting aside the abatement,
the second appeal could not have been ordered to be restored.
23. We find it difficult to agree with such reasoning. When an application
praying for substitution had been made, then, even assuming that
it does not have an explicit prayer for setting aside the abatement,
such prayer could be read as inherent in the prayer for substitution
in the interest of justice. We draw inspiration for such a conclusion,
having read the decision in Mithailal Dalsangar Singh v. Annabai
Devram Kini 35. This Court reiterated the need for a justice-oriented
approach in such matters. Inter alia, it was held that prayer to bring
on record heir(s)/legal representative(s) can also be construed as a
prayer for setting aside the abatement. The relevant passage reads
as under:
“8. Inasmuch as the abatement results in denial of hearing
on the merits of the case, the provision of abatement has

35 (2003) 10 SCC 691
[2025] 2 S.C.R. 957

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

to be construed strictly. On the other hand, the prayer for
setting aside an abatement and the dismissal consequent
upon an abatement, have to be considered liberally.
A simple prayer for bringing the legal representatives on
record without specifically praying for setting aside of an
abatement may in substance be construed as a prayer for
setting aside the abatement. So also a prayer for setting
aside abatement as regards one of the plaintiffs can be
construed as a prayer for setting aside the abatement
of the suit in its entirety. Abatement of suit for failure to
move an application for bringing the legal representatives
on record within the prescribed period of limitation is
automatic and a specific order dismissing the suit as
abated is not called for. Once the suit has abated as a
matter of law, though there may not have been passed
on record a specific order dismissing the suit as abated,
yet the legal representatives proposing to be brought on
record or any other applicant proposing to bring the legal
representatives of the deceased party on record would seek
the setting aside of an abatement. A prayer for bringing the
legal representatives on record, if allowed, would have the
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 actually asked for and is necessarily implied.
Too technical or pedantic an approach in such cases is not
called for.
9. The courts have to adopt a justice-oriented approach
dictated by the uppermost consideration that ordinarily a
litigant ought not to be denied an opportunity of having a lis
determined on merits unless he has, by gross negligence,
deliberate inaction or something akin to misconduct,
disentitled himself from seeking the indulgence of the
court. The opinion of the trial Judge allowing a prayer for
setting aside abatement and his finding on the question
of availability of ‘sufficient cause’ within the meaning of
sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the
Limitation Act, 1963 deserves to be given weight, and
once arrived at would not normally be interfered with by
superior jurisdiction.
958 [2025] 2 S.C.R.

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10. In the present case, … such an approach adopted by
the Division Bench verges on too fine a technicality and
results in injustice being done. There was no order in writing
passed by the court dismissing the entire suit as having
abated. 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 entirety even though there was no
specific prayer made and no specific order of the court
passed in that behalf.”
(emphasis supplied)

24. Hence, the impugned orders as well as the order dismissing the
second appeal as abated, under challenge in the first of the two
appeals, is bad in law; the same deserve to be set aside.
25. Turning to the second of the two appeals, the facts are a little distinct.
26. The order of the High Court dated 27th February, 2019 records as
follows:
“... this application was served on counsel for appellants
on 12.11.1992, therefore, it cannot be said that appellants
were not aware of death of sole plaintiff-respondent and
this fact also came to their notice that aforesaid application
was filed in this court. Appellant 1 was also alive on that
date, as admittedly he died in 2001, but no substitution
application was filed, therefore, appeal stood abated in
1992 itself. When no attempt was made by appellant 1
himself for substitution and setting aside the abatement,
now appellants 2, 3 and 3 (sic, 4) cannot be allowed to take
advantage subsequently. More so, mother of appellants 2,
3 and 4 who represented appellants in filing appeal, was
[2025] 2 S.C.R. 959

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

also aware of pendency of the case and it is not the case
of appellants that she never told them about pendency of
the case.”
27. In this context, it is fruitful to refer to Order XXII Rule 10-A, CPC.
The same is reproduced below for convenience:
“Wherever a pleader appearing for a party to the suit comes
to know of the death of that party, he shall inform the
Court about it, and the Court shall there upon give notice
of such death to the other party, and, for this purpose,
the contract between the pleader and the deceased party
shall be deemed to subsist.”
28. Rule 10-A was not originally contained in CPC, but was inserted
in the CPC in the year 1976 for a noble purpose which has been
acknowledged by this Court in multiple decisions. The first of such
decisions, perhaps, is Gangadhar v. Raj Kumar36 where this Court
held:
“3. … Rule 10-A which has been added in Order XXII of
the Code of Civil Procedure by the Amending Act of 1976
provides that when a pleader appearing for a party to the
suit comes to know of the death of the party, he shall inform
the court about it and the court thereafter shall issue notice
to the other party. In the case of an appeal, the word ‘suit’
has to be read as ‘appeal’. This provision was introduced
specifically to mitigate the hardship arising from the fact
that the party to an appeal may not come to know about
the death of the other party during the pendency of the
appeal but when it is awaiting its turn for being heard. The
appeal lies dormant for years on end and one cannot expect
the other party to be a watch-dog for day-to-day survival
of the other party. When the appeal on being notified for
hearing is activated, knowledge occasionally dawns that
one or the other party has not only died, but the time for
substitution has run out and the appeal has abated. In
order to see that administration of justice is not thwarted
by such technical procedural lapse, this very innovative

36 (1984) 1 SCC 121
960 [2025] 2 S.C.R.

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provision has been introduced, whereby, a duty is cast
upon the learned advocate appearing for the party who
comes to know about the death of the party to intimate to
the court about the death of the party represented by the
learned counsel and for this purpose a deeming fiction is
introduced that the contract between dead client and lawyer
subsists to the limited extent after the death of the client.
(emphasis supplied)

29. Rule 10-A casts a duty upon a pleader appearing for a party to the
suit to intimate the court about the death of such party. It further
provides that once the court is informed by the pleader of a party
that he is no more, the court “shall” notify the opposing party of the
death. A straightforward interpretation of this rule would suggest
that the court’s obligation to issue notice to the other party is
indeed mandatory. Nonetheless, this obligation may not arise in all
circumstances. One notable exception could be when the information
regarding the party’s death is conveyed to the court in the presence
of the opposing party’s pleader or is documented by the court in the
order sheet. In such cases, if the pleader of the concerned party (and
consequently the party itself) has already been notified, issuing a
further notice from the court would not serve any substantial purpose
other than being an exercise by way of abundant caution. Therefore,
in the aforementioned scenario, the absence of a notice from the
court would not imply a failure to comply with Rule 10A, suggesting
that it is not “always mandatory”.
30. Had the circumstance outlined above applied to the present
appeal, we would have likely concluded that Rule 10-A has been
substantially complied with. However, the facts in this instant case
are not particularly clear-cut. As previously noted, in the affidavit
submitted alongside an application by Anil Kumar which primarily was
not intended to inform the court of Rooprani’s death, it was stated
that he is “one of the sons of deceased Rooprani”. The inclusion
of such pertinent information within an inconspicuous section of an
application meant for a different purpose without the date of death
does not, in our considered view, constitute sufficient compliance
with Rule 10-A either by the pleader of the deceased or amount to
due notice to Om Prakash by the court (without such death being
recorded in any order passed subsequently in the presence of counsel
[2025] 2 S.C.R. 961

Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. v.
Satish Chandra (Now Deceased)

for Om Prakash). To rule otherwise would undermine the intention of
Rule 10-A, which mandates the clear communication of information
relating to death of a party which, obviously, would mean not only
the factum of death being conveyed but also the date of death since
limitation to apply under Article 120 of the Limitation Act, 1963 for
substitution begins to run from the date of death. It is implicit that this
information must be conveyed in a straightforward and unambiguous
manner to enable the plaintiff or the appellant, as the case may be,
to take steps and apply for substitution. No advantage should be
allowed to be derived if such death is, by clever drafting, sought
to be disclosed in an obscure corner of an application seeking to
bring to the notice of the court an alleged subsequent development
resulting in violation of a court’s order.
31. Having held that the manner of conveying information of the
death of Rooprani was not wholly in accordance with Rule 10-A,
information through the application of Anil Kumar cannot operate
adversely against Om Prakash. Had Om Prakash been noticed by
the High Court in due compliance with Rule 10-A, yet, did not file
an application for substitution, he would be estopped from pleading
ignorance and we would have been inclined to hold otherwise. This
not being the case, the abatement of the second appeal ought to
be set aside.
32. Although no application praying for setting aside of abatement was
ever made by the appellants before the High Court, but as held in
Mithailal (supra), prayer for setting aside of abatement can be read
in a prayer for substitution. Accordingly, the abatement of the second
appeal can and ought to be set aside for ends of justice.

CONCLUSION
33. For the foregoing reasons, the appeals merit success.
34. While allowing Civil Appeal No. 13407 of 2024, the application for
substitution37 filed by the heirs of Satish Chandra is ordered to
succeed. We set aside the order dismissing the second appeal38 as
abated. The said appeal is restored to its original file and number.

37 Civil Miscellaneous Substitution Application No. 211 of 1997
38 Second Appeal No. 885 of 1977
962 [2025] 2 S.C.R.

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Cause-title of the said appeal shall be amended to record the death
of Satish Chandra and his heirs - Anil Kumar, Vimal Kumar and Manoj
Kumar - shall be brought on record as substituted respondents.
35. Insofar as Civil Appeal No. 13408 of 2024 is concerned, the impugned
orders stand set aside. The abatement of the second appeal is also set
aside. Resultantly, the prayer for substitution stands granted. Cause-title
of the said appeal shall be amended to record the death of Rooprani
and her heirs – Anil Kumar, Vimal Kumar and Manoj Kumar - shall be
brought on record as substituted respondents in the second appeal.
Consequently, Civil Appeal No. 13408 of 2024 is allowed.
36. Having regard to the long lapse of time ever since the second appeals
were presented before the High Court, that the original parties are
now dead and that the suits were for specific performance of contracts
for sale, we request the roster bench of the High Court to consider
the second appeals on priority and decide the same, subject to its
convenience, preferably within 6 (six) months from date.
37. There shall be no order for costs.

Result of the case: Appeals allowed.

†
Headnotes prepared by: Swathi Hariprasad, Hony. Associate Editor
(Verified by: Kanu Agarwal, Adv.)