Law: Civil Procedure Code (V of 1908)

Section: 9(2),4

(a) Civil Procedure Code (V of.1908), O. XXII, r. 9 (2)¬"Sufficient cause"-Ignorance of death of deceased or whereabouts of his legal representatives-Whether sufficient' cause for excusing delay-Each case to be decision date: its own facts. Ignorance of the death of deceased is a sufficient cause to excuse delay in applying under O. XXII, r. 9 for setting aside the abatement within the time allowed by law provided that the person applying had no means of knowing of the death of his opponent and was not negligent. No hard and fast rule can be laid down in this matter each case must be decision date: its own facts. It is the duty of a litigant to keep himself informed of the existence of his adversary, but if he can satisfy the Court that in view of the circumstances of the case, he could not have known of the death of his opponent and there was no negligence or want of diligence on his part then it is a sufficient cause within the meaning of the provisions of Order XXII rule 9, Civil Procedure Code, 1908 to excuse the delay in filing an application for bringing upon the record the legal representatives of the deceased and for setting aside the abatement. (b) Civil Procedure Code (V of 1908), O. XXII, r. 4¬Application to bring legal representatives of deceased not made in time-Appeal abates automatically-No formal order necessary. If the application is not made within the prescribed time to bring upon the record the legal representatives of a deceased respondent the appeal automatically abates against him and no formal order of abatement is necessary. Ram Gopal v. Har Krishan A I R 1925 Lah. 598 and Qaim v. Nura A I R 1926 Lah. 234 ref. (c) Limitation Act (IX of 1908), S. 5 read with S. 3-Party wishing to take advantage of S. 5 must satisfy Court that it had not been negligent and had been prosecuting case with diligence and care-Civil Procedure Code (V of 1908), O. XXII, r. 9 (3). Section 3 of the Limitation Act, 1908 imposes a mandatory duty upon Courts to dismiss a suit, appeal or an application if it has been instituted after the prescribed period of limitation. And a party wishing to take advantage of section 5 of the Limitation Act must, therefore, satisfy…

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